Citation Nr: 22028416 Decision Date: 05/13/22 Archive Date: 05/13/22 DOCKET NO. 16-27 894 DATE: May 13, 2022 ORDER The reduction of the disability rating for cervical spondylosis with stenosis from 30 percent to 20 percent effective August 4, 2015, being improper, the 30 percent rating is restored effective August 4, 2015, the appeal is granted. The reduction of the disability rating for degenerative disc disease, lumbar spine, from 40 percent to 10 percent effective August 4, 2015, being improper, the 30 percent rating is restored effective August 4, 2015, and the appeal is granted. FINDING OF FACT It is not established that there was an actual improvement in the Veteran's disability picture for cervical spondylosis with stenosis or degenerative disc disease, lumbar spine, which was reasonably certain to be maintained under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The reduction in disability rating for cervical spondylosis with stenosis from 30 percent to 20 percent effective August 4, 2015, was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code (DC) 5242. 2. The reduction in disability rating for degenerative disc disease, lumbar spine, from 40 percent to 10 percent effective August 4, 2015, was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.71a, DC 5243. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1980 to March 1989 and from November 2004 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in a virtual videoconference hearing in November 2021. Following the RO's most recent adjudication of the case in an April 2017 Supplemental Statement of the Case (SSOC), additional evidence was associated with the claims file. Although he did not waive agency of original jurisdiction (AOJ) consideration of such evidence, this evidence is not pertinent as it consists of VA medical records pertaining to an unrelated medical condition. Waiver or remand for AOJ consideration is not needed. 38 C.F.R. § 20.1304(c); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The April 2016 statement of the case (SOC) and an April 2017 supplemental statement of the case (SSOC) phrased the issues as (1) evaluation of cervical spondylosis with stenosis currently evaluated as 20 percent disabling; and (2) evaluation of degenerative disc disease, lumbosacral spine currently evaluated as 10 percent disabling. This characterization is incorrect. The issues of entitlement to increased disability ratings for the disabilities is not within the scope of the current appeal. In cases where a veteran's disability rating is reduced, the issue is whether the reduction of the disability rating was proper. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) ("this is a reduction case, not an increase case"). The issue is not to be phrased as "entitlement to an increased rating, including whether the veteran is entitled to restoration of a previous rating." See Green v. Nicholson, 21 Vet. App. 512 (2006) (citing Dofflemyer, 2 Vet. App. at 279-80). Here, the reduction issues did not arise from a claim for an increased rating, nor has the Veteran since appealed an increased rating issue. Rather, the October 2015 rating decision originated in response to an August 2015 VA examination. The Veteran filed a notice of disagreement (NOD) in November 2015. He identified the October 2015 rating decision as the one with which he disagreed. He identified the specific issues with which he disagreed as the rating reductions. As such, there are no increased rating issues properly before the Board. The Board finds no prejudice to the Veteran in proceeding at this stage. The SOC and SSOC made findings that there was evidence showing a "sustained improvement" in the Veteran's condition when comparing the evidentiary basis for the higher ratings with that found to justify the reduced ratings. This discussion is generally consistent with an analysis pertaining to the propriety of a rating reduction. Moreover, the SOC cited 38 C.F.R. § 3.344, which is the relevant regulation under consideration in this appeal. Hence, there is no prejudice to the Veteran in proceeding to final disposition on these issues at present. Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGREC 16-92. Rating Reduction Due Process As a preliminary matter, pertaining to both rating reduction issues, the Board finds that all due process requirements were met in reducing the ratings. The AOJ did not issue a rating decision proposing to reduce the ratings or advise the Veteran that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the current levels, and (2) that he had 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e). However, these due process steps did not apply because the rating reductions did not reduce the Veteran's overall compensation. See VAOPGCPREC 71-91. The Veteran has been in receipt of a total (100 percent) disability rating throughout the entire appeal period. The reductions at issue here, although they reduced the ratings of the individual disabilities, did not reduce the overall 100 rating. The procedural requirements under 38 C.F.R. § 3.105 re not applicable under these circumstances, so no further due process action is needed. Applicable Law Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). A rating becomes entitled to heightened procedural protections under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years. Simon v. Wilkie, 30 Vet. App. 403, 410 (2018). The applicability of § 3.344 is premised on how long a disability rating per VA's rating schedule has been in place, as opposed to how long some baseline symptomatology has existed. Id. at 411. Section 3.344(a) applies when a rating exists for 5 years without changing its degree or position on the rating schedule. Id. These requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421. Even where it is undisputed that § 3.344(a) does not apply, Brown establishes that two factual findings must be made for a valid reduction of a non-protected disability rating: (1) actual improvement in the disability and (2) that improvement reflects "improvement in the . . . ability to function under the ordinary conditions of life and work." Stern v. McDonough, 34 Vet. App. 51, 61 (2021). Finally, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. 1. Whether the reduction of the disability rating for cervical spondylosis with stenosis from 30 percent to 20 percent effective August 4, 2015, was proper Service connection for this disability was granted in a March 2007 rating decision. An initial 20 percent disability rating was assigned under 38 C.F.R. § 4.71a, DC 5242. A December 2008 rating decision granted the 30 percent under DC 5242, effective November 25, 2008. The 30 percent rating was assigned based on a November 2008 VA examination showing forward flexion limited to 15 degrees. The October 2015 rating decision on appeal reduced this 30 percent rating to 20 percent effective August 2015, under DC 5242. The RO found that an August 2015 VA examination showed he no longer met the criteria for a 30 percent rating. The RO observed that this reduction did not affect his overall combined evaluation. The applicable rating schedule under DC 5242 is set forth under the General Rating Formula for Diseases and Injuries of the Spine. The relevant diagnostic schedule is as follows: Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 Forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 20 The factual baseline for the 30 percent rating in this case was the November 2008 VA examination. It showed complaints of tightness, stiffness, and achiness in the muscles of the neck, plus constant, daily pain. He had spasm in the cervical spine region; flexion was to 15 degrees with no additional loss due to pain or other factors. From this baseline, the evidence between November 2008 and August 2015 does not tend to show a material improvement under the ordinary conditions of daily life. During VA primary care treatment in July 2010, the Veteran had decreased extension and flexion such that he was "barely able to move." He eventually underwent physical therapy with some improvement. See, e.g., 1/13/2011 VA Physical Therapy. He had a second VA examination in January 2010. At that time, the Veteran stated that his condition remained unchanged. He had aching and throbbing neck pain. The pain occurred intermittently on a daily basis, worse with prolonged standing and sudden movements. He had no incapacitating episodes. He denied recent flare-ups, but had stiffness, fatigue, and weakness. He could walk one block or 10 minutes. He had increased pain with any prolonged standing or sitting. Flexion was 0-25 degrees and extension to 0-20. The examiner noted that there would be some additional decrease in range of motion due to pain with repetitive use, but the examiner could not quantify the additional limitation. The Veteran underwent another VA examination in June 2012. He complained of stiffness in his neck. He had pain and stiffness that were constant and occurred every day. He also had flare-ups particularly with cold, damp weather. He took medication daily for pain. He stated that he had recently undergone physical therapy, which he found very helpful, but he still had difficulty bending his head for any extended period of time longer than a few minutes due to pain. This made "simple things" like brushing his teeth difficult. The pain disturbed his sleep and intensified with quick rotations of the neck. He could drive, but was limited to 30 minutes. Flexion was to 0-20 degrees. Next, at the August 2015 VA examination (upon which the reduction was based), the Veteran reported flare-ups with the severity related to activity level. This involved weekly mild flares and severe flares 6 times a year. The flares last 1-14 days depending on the initial severity. On physical examination, flexion was 0-20 degrees. The examiner found no additional loss of function or limited motion after repetitive use testing and no basis for further limitation with repetitive use over time or during flare-ups. The Board finds that neither the January 2010 nor the August 2015 VA examination shows a markedly different disability picture when compared with the November 2008 examination. Limitation of flexion was improved by at least 5 degrees at both examinations. Mechanical application of these limitations of motion would be consistent with a lower disability rating as the limited flexion was greater than 15 degrees. However, the Veteran continued to be rated at 30 percent after the January 2010 VA examination and both the January 2010 and August 2015 VA examinations are incomplete to the extent they do not show all the findings necessary to adequately evaluate the condition under the rating schedule pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), and Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Moreover, they do not show an improvement under the ordinary conditions of daily life. To the contrary, the functional limitations appear materially the same to the extent the Veteran continued to voice ongoing complaints of pain with associated functional impairments. This is consistent with the intervening VA medical records, which show some transitory improvement with physical therapy, but not a sustained improvement under the ordinary conditions of daily life. Subsequent evidence likewise shows no marked improvement under the ordinary conditions of daily life. For example, in September 2015, one month after the August 2015 VA examination, the Veteran was seen by his VA primary care provider. He complained of pain radiating from the neck all the way to the left foot for the past 3 weeks. He denied weakness, but reported taking Motrin 800 mg four times a day without improvement. The pain was worse at night, but was also present during the day. Relatedly, a November 2015 VA electromyogram (EMG) consultation indicated "minimal to none mobility" of the cervical spine. The Veteran stated that any movement exacerbated pain. He was found to have reduced cervical range of motion, but limitation of motion could not be fully assessed as the Veteran was not able to tolerate the testing. Subsequent physical therapy treatment in February 2016 and April 2016 appear to show flexion no greater than 14 degrees. (The physical therapist wrote "14" but did not make clear whether this was in degrees of limited motion.) In April 2016, it was expressly stated that he had "no improvement" in the cervical range of motion. Later in April 2016, he reported progressively getting more stiffness in all his joints. At a May 2016 VA Rheumatology consultation, he reported having more pain and stiffness, and it was noted he had reduced cervical spine range of motion (limitation of motion in degrees was not provided). Finally, the Veteran testified at his November 2021 Board hearing that his condition had not improved but had, in fact, continued to actually get worse. He explained that he was still being seen and taking daily medication. He went through physical therapy, but he felt the medical records showed that it was not doing any good. Board Hr'g Tr. 2. He had issues with walking, standing, and bending. The condition had impacted just about all aspects of his life. Board Hr'g Tr. 2. When it was cold, he had a lot of stiffness, impacting his ability to turn his head. Board Hr'g Tr. 3. The Board observes that the file does not include VA medical records since February 2017. However, the Veteran's testimony is considered a credible account of his condition, and competent evidence of what occurred during the VA treatment. In light of this record, the Board finds no clear, material improvement to a 20 percent disability level between the time the 30 percent rating was assigned and when the reduction was made effective in August 2015. It is not established that there was an actual improvement in the disability which was reasonably certain to be maintained under the ordinary conditions of life. Thus, the reduction in the disability rating from 30 percent to 20 percent was not proper, and the 30 percent rating must be restored effective August 4, 2015. The appeal to this extent is granted. 2. Whether the reduction of the disability rating for degenerative disc disease, lumbar spine, from 40 percent to 10 percent effective August 4, 2015, was proper Service connection for this disability was granted in a March 2007 rating decision. A July 2011 rating decision granted the 40 percent disability rating under 38 C.F.R. § 4.71a, DC 5243, effective from April 2011. The 40 percent rating was assigned based on a June 2011 VA examination showing flexion of the lumbar spine at 30 degrees or less. The October 2015 rating decision on appeal reduced the 40 percent rating to 10 percent effective August 2015. The RO cited an August 2015 VA examination showing flexion greater than 30 degrees and an absence of (a) favorable ankylosis of the entire thoracolumbar spine and (b) IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The rating schedule under DC 5243 is set forth under the General Rating Formula for Diseases and Injuries of the Spine. The relevant diagnostic schedule is as follows: Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 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 20 The factual baseline for the 40 percent rating was a June 2011 VA examination. It showed objective evidence of pain and muscle spasm. Flexion was to 25 degrees. The examiner did not identify any functional limitations except to note that there were no flare-ups. A July 2011 addendum states that no additional limitation of motion or function loss due to weakened movement, excessive fatigability, incoordination, or painful motion was found upon repetitive use. After the June 2011 VA examination, the VA medical records include ongoing physical therapy notes. A physical therapy low back evaluation in November 2011 indicated increased symptoms with walking greater than 1/4 mile, light dynamic standing and activity greater than 20 min, sitting/driving greater than 20 minute, and any functional forward bending of the trunk including with dressing, bathing and lifting. Flexion was measured as 25 percent, which the Board observes, would correspond with a limitation to 23 degrees. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (where 25 percent of 90 degrees is 22.5). A VA physical therapy consultation in February 2012 reports that he had walked one mile recently, but experienced increased symptoms. He could tolerate driving for approximately 1 hour, but had difficulty with start up from prolonged sitting. He could not comfortably lift heavier items from floor level, and he still had some low back pain and stiffness with dressing and hygiene. He had occasional flares of low back pain symptoms affecting day to day tolerance of activities. Other VA medical records throughout this time period show similar symptoms and findings with some improvement from physical therapy. The Veteran underwent a second VA examination in June 2012. He reported that he found physical therapy helpful, but still had constant, daily lower back pain. He took medication for pain relief, which was not completely effective. He could only walk approximately 1/4 mile and stand for approximately 5-10 minutes before needing to rest or change positions. His lifting was limited; he had difficulty climbing stairs; and he was unable to squat or kneel. Physical examination showed flexion to 40 degrees with pain at 35 to 40 degrees. During primary care treatment in August 2012, the Veteran complained of low back pain with prolonged sitting. He reported an improvement in pain with physical therapy, and his low back pain was noted to be relatively well-controlled. An April 2013 VA primary care consultation indicated a similar disability picture, except at an associated nursing assessment documented his report of daily, constant, and sharp, exacerbated by standing and sitting. At the August 2015 VA examination (upon which the reduction was based), the Veteran reported flare-ups of 4 to 10 out of 10 in severity related to activity level. He had mild weekly flares and severe flares six times per year. The flares lasted from 1 to 14 days. Back and lower body exercises precipitated the flares. Physical examination demonstrated flexion to 65 degrees with pain, weakness, fatigability or incoordination not significantly limited his functional ability with repeated use over a period of time. The examiner did not report limitation of motion during flare-ups. In a September 2015 addendum, it was clarified that the Veteran had intervertebral disc syndrome (IVDS) without incapacitating episodes. The November 2015 VA EMG consultation then showed "minimal to none mobility" of the lumbar spine. He stated that any movement exacerbated pain. During further physical therapy in February 2016, the Veteran complained that sleeping was difficult due to the pain as was sitting. He had more pain when he walked and had some pain when bending to don his shoes. Forward flexion was listed as 19. An April 2016 VA physical therapy consultation identified flexion to 19 and 21. (Neither physical therapy report made clear that these were degrees of limited motion.) Later in April 2016, he complained of progressively getting more stiffness in all his joints with symptoms worse when he first woke up. At the end of April 2016, it was noted that the had "very little improvement" in his range of motion. The May 2016 VA Rheumatology consultation indicate more pain and stiffness. Most recently, at his November 2021 Board hearing, the Veteran testified that he was still being seen for the same condition. He had had injections and physical therapy, and just recently an magnetic resonance imaging (MRI) scan. He did not feel the condition was getting any better. Board Hr'g Tr. 4. The last evaluation by his doctor stated the condition was not getting better, and there were reasons to continue on pain medication. Board Hr'g Tr. 4. He had been given a walker. Board Hr'g Tr. 5. (Continued on the next page) The Board observes that the file does not include VA medical records since February 2017. However, the Veteran's testimony is considered a credible account of his condition, and competent evidence of what occurred during the VA treatment. Overall, in light of this record, the Board finds no clear, material improvement to a 10 percent disability level between the time the 40 percent rating was assigned and when the reduction was made effective in August 2015. It is not established that there was an actual improvement in the disability which was reasonably certain to be maintained under the ordinary conditions of life. The limitations in the VA medical records and examinations between April 2011 and August 2015 show some improvement with physical therapy, but ongoing functional limitations consistent with the examination upon which the 40 percent rating was assigned. Thus, the reduction in the disability rating from 40 percent to 10 percent was not proper, and the 40 percent rating must be restored effective August 4, 2015. The appeal to this extent is granted. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.