Citation Nr: A25018564 Decision Date: 02/28/25 Archive Date: 02/28/25 DOCKET NO. 230902-375622 DATE: February 28, 2025 ORDER The reduction of the appellant's disability rating for lumbosacral strain with degenerative arthritis and spondylolisthesis, residuals status post spine fusion (Hereinafter "lumbar spine disability) from 20 percent to 10 percent effective August 1, 2023, was improper; entitlement to a restoration of a 20 percent rating for a lumbar spine disability from August 1, 2023, is granted. FINDING OF FACT At the time of the May 2023 rating decision, which reduced the rating for the appellant's lumbar spine disability, the evidence did not show that improvement of this service-connected disability would be maintained under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the schedular rating for a lumbar spine disability was improper; the criteria for restoration of the 20 percent rating for the lumbar spine disability 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 appellant served on active duty in the United States Navy from March 1985 to May 1987. Procedural History This case comes before the Board of Veterans' Appeals (Board) from a May 2023 rating decision of VA's Veterans Benefits Administration, the agency of original jurisdiction (AOJ), which reduced the appellant's 20 percent disability rating assigned to his service-connected lumbar spine disability to10 percent, effective August 1, 2023. Following the May 2023 rating decision, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), to the Board in September 2023, and elected the Direct Review docket. Evidentiary Windows As the appellant has selected the Direct Review Docket, the Board may only consider the evidence of record before the AOJ at the time of its decision on the issue on appeal. See 38 C.F.R. §§ 20.300(a), 301. The Board will not consider evidence received after the AOJ decision unless the claimant files a timely request for a Board hearing or an opportunity to submit additional evidence on the NOD (VA Form 10182). 38 C.F.R. § 20.301. The appellant has not filed such a request. If additional evidence was submitted after the AOJ decision, the Board will not consider it. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023). Propriety of Rating Reduction The appellant contends that his 20 percent disability rating should be restored as his lumbar spine disability is not improving and is continuing to deteriorate. See Board NOD, Received September 2, 2023. Applicable Law 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). Under 38 C.F.R. § 3.105(e), where a reduction in 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, 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 the beneficiary of the final rating action expires. Under 38 C.F.R. § 3.105(i), the advance written notice concerning proposed action must inform the beneficiary that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10-day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. VA's General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable. It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable. See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating). A Veteran's disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155; 38 C.F.R. § 3.951. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). 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 at least as 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). However, if a rating level has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) are inapplicable. 38 C.F.R. § 3.344 (c). In such cases, reexamination need only show actual improvement for a reduced rating to be appropriate. See id. The United States Court of Appeals for Veterans Claims (Court) noted in Brown v. Brown, 5 Vet. App. 413, 420 (1993) that "several general VA regulations are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more" and discussed 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13. 38 C.F.R. § 4.13 provides that "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 examination or in use of descriptive terms." Following quotation of this regulation, the Court stated in Brown that the "Board is required in any rating-reduction case 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." The Court also stated, following quotation of 38 C.F.R. §§ 4.2 and 4.10, that "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." More recently, the Court stated in Stern v. McDonough, 34 Vet. App. 51, 59 (2021) that "Brown established 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." In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ 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. The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, the lumbar spine disability 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 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. Analysis After review of the lay and medical evidence of record, a material improvement of the appellant's lumbar spine disability 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 20 percent rating, effective August 1, 2023, have been met. Initially, the record reflects the appellant was in receipt of a combined disability rating of 60 percent since October 13, 2022. The reduction of the rating for the appellant's lumbar spine disability did not affect the combined disability rating, thus, the provisions of 38 C.F.R. § 3.105 (e) are inapplicable to this case as there was no reduction in the amount of compensation payable. By way of procedural history, in a September 2021 rating decision the appellant was granted service connection for his lumbar spine disability and assigned a 20 percent disability rating, effective May 25, 2021. In October 2021, the appellant filed a VA Form 21-526EZ, fully developed claim seeking an increased evaluation for his service-connected lumbar spine disability. A February 2023 rating decision proposed to reduce the 20 percent disability rating to 10%. The May 2023 rating decision on appeal, effectuated the reduction, and the appellant's lumbar spine disability rating was reduced to 10 percent, effective August 1, 2023. Based on these facts, the 20 percent disability rating for the lumbar spine disability was in effect for less than five years. Thus, in such cases, reexamination need only show actual improvement for a reduced rating to be appropriate. 38 C.F.R. § 3.344 (c). Here, the initial grant of service connection for the appellant's lumbar spine disability was based on an August 2021 VA back examination. At this time, the VA clinician noted the appellant had a diagnosis of degenerative disc disease, spinal fusion, and radiculopathy of the bilateral lower extremities. See VA Back Conditions Disability Benefits Questionnaire (DBQ), August 16, 2021. The VA clinician noted that the condition had progressed and worsened since its onset. The appellant reported having a baseline pain level that was a nine out of ten, with constant aching pain, and morning stiffness. He indicated having intermittent pain, numbness, and tingling that radiated down both legs. The appellant reported that he took Oxycodone, Advil, Gabapentin, and Baclofen to treat pain. Id. The appellant reported having flare-ups daily that were moderate in nature and lasted several hours. He also stated that he gave up playing golf due to back pain. On initial active range of motion (ROM) testing, the clinician noted the appellant's forward flexion was limited to 50 degrees and pain was noted in all ranges of motion. Passive ROM was not performed due to risk of further injury. Id. There was objective evidence of crepitus. On repetitive use ROM testing, the VA clinician noted forward flexion was limited to 45 degrees. Pain and fatigability were noted to significantly limit functional ability during repeated use over time and during flare-ups, and during these times forward flexion was limited to 45 degrees. Id. The appellant suffered from muscle spasms due to his lumbar spine disability. He was limited in prolonged walking, standing, or sitting due to lumbar spine pain. There was no muscle atrophy. Deep tendon reflexes (DTRs) were hypoactive in the bilateral knees and ankles. Id. Sensory examination indicated the appellant had normal sensation to light touch in the bilateral upper anterior thigh, and thigh/knee, and decreased sensation to light touch in the bilateral lower leg/ankle, and foot/toes. Straight leg raising test was positive in both legs. The VA clinician noted the appellant suffered from mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the bilateral lower extremities associated with radiculopathy. The appellant's radiculopathy affected his sciatic nerves of the bilateral lower extremities. Id. There was no ankylosis of the spine, other neurologic abnormalities, or intervertebral disc syndrome (IVDS) indicated. The appellant required the constant use of a brace and cane due to his lumbar spine disability and associated radiculopathy. Diagnostic tests revealed posterior fusion, retrolisthesis, and multilevel degenerative changes. The VA clinician concluded that the appellant's lumbar spine disability impacted his ability to perform any type of occupational task as he was limited in prolonged walking, standing, sitting, bending, and twisting at the waist. Id. The AOJ relied on an October 2022 back VA examination to support its rating reduction. The October 2022 back VA examination report notes the VA clinician indicated that the appellant had a diagnosis of degenerative arthritis, lumbosacral strain, spondylolisthesis, and residuals of lumbar spinal fusion. See VA Back Conditions, DBQ, October 31, 2022. The appellant reported having symptoms of low back pain and stiffness with spasms. He used Oxycodone, Gabapentin, Baclofen, and naproxen as needed for pain. He reported having moderate to severe flare-ups of the back that occurred every day that were alleviated by medication and rest. Id. The appellant reported having difficulty walking, standing, running, kneeling, and changing position from sitting to standing without periodic rest, and he could not carry objects weighing more than 20 pounds, all of which contributed to his functional impairment. On active ROM testing, forward flexion was limited to 75 degrees; extension was limited to 30 degrees; right and left lateral flexion were limited to 30 degrees; and right and left lateral rotation was limited to 30 degrees. Pain was noted in forward flexion, right lateral flexion, and left lateral flexion, but it did not cause additional limitation of motion. Id. Passive ROM testing yield the same results as active ROM testing. There was no objective evidence of crepitus, and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. On repetitive use testing, it was noted that there was no additional loss of function or ROM after three repetitions. Pain, fatigability, and lack of endurance were noted to significantly limit functional ability with repeated use over time and during flare-ups. During these times forward flexion was limited to 70 degrees; extension was limited to 25 degrees; right and left lateral flexion were limited to 25 degrees, and right and left lateral rotation were limited to 25 degrees. There was no guarding or muscle spasm indicated. There was no muscle atrophy. DTRs were normal in the bilateral knees, and ankles. Sensory examination revealed normal sensation to light touch in all the bilateral lower extremities. Straight leg raising test was negative in both legs. The VA clinician noted that the appellant did not have signs or symptoms of radiculopathy. Id. There was no ankylosis of the spine, other neurologic abnormalities, or IVDS indicated. The appellant did not require the use of assistive devices. Diagnostic tests showed the appellant underwent posterior fusion, and that he had discogenic change and osteoarthritic changes in the lumbar spine, and mild anterior spondylolisthesis. The VA clinician concluded that appellant's lumbar spine disability impacted his ability to perform any type of occupational task as he had difficulty with prolonged walking, standing, running, kneeling, changing position from sitting to standing, and carrying objects more than 20 pounds. Id. As a result of the findings of the October 2022 VA examination, the AOJ requested an addendum opinion in January 2023 addressing the improved symptoms noted in the October 2022 VA examination report. The October 2022 VA clinician indicated that it was assumed that the improved symptoms noted at the October 2022 VA examination were the result of the appellant's medication. See VA Addendum Opinion, January 25, 2023. The Board finds the October 2022 VA examination did not reflect an actual improvement in the disability and that the improvement reflected improvement in the ability to function under the ordinary conditions of life and work. Stern, 34 Vet. App. 59. Here, despite the October 2022 VA examination noting some improvement of the appellant's lumbar spine disability, the October 2022 VA clinician indicated that the improvement was assumed to be due in part to the appellant's medication. See VA Addendum Opinion, January 25, 2023. The appellant's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5242, which does not contemplate the ameliorative effects of medication and a higher level of disability could possibly be obtained when disregarding the ameliorative effects of any medication taken to treat the symptoms under DC 5242. As such the examination does not adequately assess the appellant's lumbar spine disability. Additionally, despite the noted improvements, the October 2022 VA clinician concluded that the appellant's lumbar spine disability continued to impact his ability to perform any occupationally task. See VA Back Conditions, DBQ, October 31, 2022. As such, the noted improvement did not reflect improvement in the ability to function under the ordinary conditions of life and work. Stern, 34 Vet. App. 59. In sum, the reduction of the disability rating for the appellant's lumbar spine disability was improper because the evidence of record did not establish that an improvement in the disability actually occurred and reflected improvement in the ability to function under the ordinary conditions of life and work. As such, the criteria for restoration of the 20 percent disability rating for the appellant's lumbar spine disability from August 1, 2023, is met. 38 U.S.C. § 5112; 38 C.F.R. § 3.344. 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.