Citation Nr: 18160556
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-49 922A
DATE:	December 27, 2018
ORDER
The reduction of the assigned rating for service connected lumbosacral strain from 40 percent to 10 percent effective December 1, 2015 was improper and the 40 percent rating is restored. 
Entitlement to a rating in excess of 40 percent for service-connected lumbosacral strain with degenerative arthritis, intervertebral disc syndrome (IVDS), and degenerative disc disease (DDD) is denied for the entire period on appeal.
FINDINGS OF FACT
1. At the time of the September 2015 rating reduction for lumbosacral strain, which became effective in December 2015, the disability rating had been in effect for more than five years.
2. The evidence of record at the time of the September 2015 rating decision did not indicate that the Veteran’s lumbosacral strain had undergone a material improvement to the point that he was better able to function under the ordinary conditions of life and work.
3. From October 29, 2013, the Veteran’s lumbar back disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or any incapacitating episodes associated with IVDS.
CONCLUSIONS OF LAW
1. The reduction of the rating for lumbosacral strain from 40 percent to 10 percent, effective December 1, 2015, is void ab initio; restoration of the previously assigned 40 percent disability rating is warranted. 38 U.S.C. §§ 1154 (a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105, 3.343, 3.344 (2018).
2. From October 29, 2013, the criteria for a rating in excess of 40 percent for service-connected lumbosacral strain with degenerative arthritis, intervertebral disc syndrome (IVDS), and degenerative disc disease (DDD) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5242, 5243 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from November 2001 to July 2005.
By way of history, a January 2006 rating decision granted service connection for lumbosacral strain with a 40 percent disability rating effective July 28, 2005. Following evidence of improvement, an October 2009 rating decision decreased the Veteran’s disability rating from 40 percent to 20 percent effective February 1, 2010. A May 2010 rating decision again granted an increased rating of 40 percent for lumbosacral strain effective March 3, 2010. The Veteran filed an additional claim for an increased rating for his service-connected lumbosacral strain in October 2014. A September 2015 rating decision decreased the evaluation of the Veteran’s lumbosacral strain to 10 percent, effective December 1, 2015, and effectively denied the Veteran’s increased rating claim. The Veteran timely appealed. The August 2016 Statement of the Case (SOC) did not list the propriety of the reduction as an issue on appeal. Generally, if a Notice of Disagreement (NOD) has been filed but no SOC has been issued, the Board must remand the claim to the agency of original jurisdiction so that an SOC may be issued. Manlicon v. West, 12 Vet. App. 238 (1999). However, the Board finds that the SOC does discuss the Veteran’s rating reduction as well as his increased rating claim as noted in the Veteran’s September 2015 Notice of Disagreement. Therefore, this situation is distinguishable from Manlicon, where an NOD had not been recognized. As such, the Board need not direct the RO to address the claim at this time in a remand. 
Further, the Board notes that the Veteran’s claim which led to the reduction at issue in this appeal, was a claim for a higher rating for the service-connected lumbar spine disability, and the Veteran properly perfected an appeal of that issue. Considering that the reduction appeal arose from the claim for a higher rating, the Board will take jurisdiction of the reduction claim as part and parcel of the claim for a higher rating for the lumbar spine disability because the claim of increased rating covers the period prior to, during, and after the reduction. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (holding that a review of an increased rating claim may take into account varying and distinct disability ratings throughout the entire time period the increased rating claim has been pending, to account for the dynamic nature of the disorder at issue). Accordingly, the Board takes jurisdiction of the issue of whether the reduction was proper.     
The Veteran requested a Board hearing in his October 2016 substantive appeal; however, the Veteran’s file contains a notice of contact dated November 2016 which reflects he instead requested a Decision Review Officer (DRO) hearing, and a subsequent notice of contact dated July 2018 reflects the Veteran no longer wanted a hearing of any kind for his current appeal. As such, the Board finds the Veteran has waived his request for a hearing, and the case is properly before the Board.  
1. Propriety of reduction of the assigned rating for service connected lumbosacral strain from 40 percent to 10 percent effective December 1, 2015
The Veteran asserts the RO erred when it reduced his service connected lumbar strain disability evaluation from 40 percent to 10 percent effective December 1, 2015. 
For a reduction of a disability rating to be proper, there are both procedural and substantive requirements that must be followed. As discussed in the sections below, the RO followed the proper procedural steps in reducing the Veteran’s disability rating. However, since the record shows that the RO did not observe the regulatory requirements at the time of the reduction, the substantive requirements were not met. As a result, the reduction was improper and restoration of the 40 percent disability rating is warranted.
As noted, a May 2010 rating decision granted an increased rating of 40 percent for lumbosacral strain effective March 3, 2010. A VA examination was conducted in January 2015, and a September 2015 rating decision decreased the evaluation of the Veteran’s lumbosacral strain to 10 percent, effective December 1, 2015. 
Where a reduction in the evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction of compensation payments currently being made, a rating action proposing the reduction must be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). VA must notify the veteran that he has 60 days during which to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The veteran also must be notified that he will have an opportunity for a pre-determination hearing, provided that the request for such a hearing is received by VA within 30 days after the date of the notice. 38 C.F.R. § 3.105(i).
The RO complied with those pre-decisional procedural requirements. A February 2015 rating decision proposed the reduction of the schedular rating for the Veteran’s lumbosacral strain from 40 percent to 10 percent. The Veteran was notified of the proposed action in a February 2015 letter and was given the required 60 days to present additional evidence. He was also notified of the opportunity for a hearing and advised of the deadline for requesting one.
The RO complied with all procedural requirements for a final decision as well. When, as here, a pre-decision hearing is not requested, after all pre-decisional requirements have been met, the final action will be based solely upon the evidence of record. 38 C.F.R. § 3.105(i)(2). Written notice of the final action shall be issued to the Veteran and his or her representative, setting forth the reasons therefor and the evidence upon which it is based. Where, following consideration of any additional evidence submitted, a reduction of benefits is determined to be warranted, the effective date of such reduction shall be the last day of the month in which the 60-day period from the date of notice to the Veteran of the final action expires. 38 U.S.C. § 5112(b)(5); 38 C.F.R. § 3.105(i)(2)(i).
A September 2015 rating decision reduced the Veteran’s disability rating from 40 percent to 10 percent, effective December 1, 2015. The rating decision essentially stated that the September 2011 and January 2015 VA examinations noted increased range of motion, indicating sustained improvement and warranting the reduction. A February 2015 letter provided him with notice of the action taken and his appellate rights. That rating decision was issued after the expiration of the Veteran’s 60-day response period, so it was issued after all pre-decisional requirements were met. Since the reduction in the Veteran’s service-connected disability compensation was approved in September 2015, an effective date of December 1, 2015, complies with the effective date provisions because the RO assigned a date after the required period expired. Thus, VA met all procedural requirements under 38 U.S.C. § 5112(b)(5) and 38 C.F.R. § 3.105(e) and (i). However, as discussed below, the substantive requirements for reducing the Veteran’s disability rating were not met.
The Board notes that the Veteran’s lumbosacral strain has changed disability ratings several times since it was first service connected. The Veteran’s 40 percent evaluation was in effect from March 3, 2010, slightly less than five years, when the RO proposed the rating reduction, but had been in effect for more than five years when the reduction was effectuated in December 2015. Ratings in effect for five years or more may be reduced only if there is evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations. 38 C.F.R. § 3.344(a), (b); see Brown v. Brown, 5 Vet. App. 413, 417-18 (1995).
The February 2015 rating decision which proposed reduction for Veteran’s 40 percent disability rating noted the reduction was based on improvement shown in examinations dated in September 2011 and January 2015 as compared to the results of the March 2010 VA examination upon which a 40 percent rating was assigned. During the September 2011 VA examination, range of motion testing showed flexion to 45 (with pain at 20 degrees) degrees and extension to 10 degrees (with pain). During the January 2015 VA examination, range of motion testing showed flexion to 70 degrees and extension to 25 degrees with pain. The examiner indicated that the Veteran experienced “severe pain due to muscular spasm during the evaluation” and he was unable to perform repetitive use testing. The examiner further indicated that the Veteran had guarding or muscle spasm causing an abnormal gait.  
Upon review of the record, the Board finds that the evidence does not reflect improvement under the ordinary conditions of life and work regarding the Veteran’s back disability; therefore, the Board finds that the reduction from 40 percent was improper. Considering the Veteran’s reports of pain at 20 degrees of flexion in September 2011 and medical evidence of “severe” muscle spasm preventing repeat range of motion in January 2015, the Board finds that the evidence of record does not demonstrate an actual sustained material improvement has occurred related to the Veteran’s back disability. There is no showing that the examination results reflect actual improvement in the veteran’s ability to function under the ordinary conditions of life and work. Indeed, when considering limitations related to pain and muscle spasm, the disability of his lumbosacral strain continues to more nearly approximate the criteria required for a 40 percent evaluation. 
After resolving the benefit of the doubt in favor of the Veteran, the Board finds that the reduction of the Veteran’s service-connected lumbar disability is void ab initio, and restoration of his 40 percent rating is warranted. 38 C.F.R. § 3.344.
2. Entitlement to a rating in excess of 40 percent for service connected lumbosacral strain from October 29, 2013.
Initially, the Board notes that an August 2018 rating decision “increased” the Veteran’s disability rating for his service-connected lumbosacral strain to 20 percent, effective from October 29, 2014, the date the Veteran’s claim for an increased rating was received. As the rating reduction was found improper, the Board finds that the Veteran is in receipt of a 40 percent disability rating for his service-connected back disability from March 2010. As such, the August 2018 rating decision awarding a 20 percent disability rating for the Veteran’s service-connected back disability would, in effect, be a reduction. As the Board has reinstated the 40 percent disability rating and taken jurisdiction over the October 2014 increased rating claim, the proper question before the Board is whether a rating in excess of 40 percent is warranted during the appeal period. Accordingly, the issue has been restated to reflect the current posture of the case. 
Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran’s lumbar spine disability is rated under Diagnostic Code 5010-5237. Diagnostic Code 5010 provides that arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis. See 38 C.F.R. § 4.71a. Degenerative arthritis is rated under Diagnostic Code 5003, which provides that degenerative arthritis, established by x-ray findings, is rated according to limitation of motion for the joint or joints involved. 
Under the General Rating Formula for Disease and Injuries of the Spine (Diagnostic Codes 5235-5242) a 20 percent rating is warranted for forward flexion of the lumbar spine greater than 30 degrees but less than 60 degrees, or combined range of motion of the lumbar spine not greater than 120 degrees, or muscle spasm, guarding or localized tenderness resulting in abnormal gait or abnormal spinal contour; a 40 percent rating is warranted for forward flexion of the lumbar 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; and a 100 percent rating, the maximum available, is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a.
These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. See 38 C.F.R. § 4.71a, Plate V.
Under the Formula for Rating IVDS based on Incapacitating Episodes (Diagnostic Code 5243) a 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating, the maximum available, is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.
For VA compensation purposes under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Diagnostic Code 5243, Note (1). IVDS is to be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243.
A January 2015 VA examination reflects the Veteran’s continued complaints of back pain and weakness. His forward flexion measured 70 degrees and extension measured 25 degrees. The Veteran was unable to perform repetitive testing due to severe muscle spasm. The examiner noted localized tenderness and pain as well as abnormal gait. Functional loss was noted as less movement than normal, pain on movement, and interference with standing which contributed to limitation of motion. No ankylosis, muscle atrophy, IVDS, arthritis, or other neurologic abnormality was noted.
During a January 2018 VA examination, the examiner noted the Veteran’s diagnoses of lumbosacral strain and degenerative arthritis of the spine. Range of motion testing showed forward flexion to 60 degrees and extension to 20 degrees with pain. There was no loss of range of motion on repetition or evidence of pain on weightbearing. The examiner noted localized tenderness and pain but there was no evidence of guarding or muscle spasm.  No ankylosis, muscle atrophy, IVDS, or other neurologic abnormality was noted.
An August 2018 VA examination report diagnosed degenerative arthritis of the spine and IVDS. The Veteran reported increased pain caused by standing and exaggerated by activity, soreness, and tightness of the lumbar spine as well as inability to run, bend, or lift. Forward flexion measured 40 degrees and extension measured 15 degrees. The examiner noted evidence of localized tenderness and moderate pain directly caused by arthritis, and the examiner noted guarding and muscle spasm which resulted in abnormal gait. The examiner also noted less movement than normal, disturbance of motion, and interference with standing. The Veteran did not have ankylosis or other neurologic abnormalities. Finally, the examiner noted the Veteran had no symptoms of IVDS which required bed rest prescribed by a physician within the past twelve months.      	      
Medical treatment records dated during the appeal period record the Veteran’s complaints of lumbar back pain but do not contain any range of motion measurements or note any ankylosis, favorable or unfavorable. 
After review of the evidence, the Board finds the Veteran’s lumbar disability has not been manifested by any ankylosis of the lumbar spine or any incapacitating episodes associated with IVDS at any time during the appeal period. Range of motion was evident throughout the appeal period. The August 2018 VA examiner also diagnosed IVDS, but no symptoms of IVDS required bed rest prescribed by a physician within the past twelve months. As discussed above, the relevant symptomatology since October 29, 2013 includes limitation in less movement than normal, pain on movement, interference with standing, and forward flexion, at worst, to 40 degrees. Such symptomatology is contemplated in the currently assigned 40 percent disability rating. Moreover, there is no evidence of favorable ankylosis of the lumbar spine. The Board notes that the Veteran has never been diagnosed with spinal ankylosis, and his physical findings do not suggest ankylosis. As a result, a rating in excess of 40 percent since December 1, 2015 is denied for the service-connected lumbosacral strain disability. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237.
The Board notes that the Veteran has asserted that his lumbosacral strain warrants a higher disability rating. However, objective findings in the record do not support this assertion. The Veteran is competent to report certain obvious symptoms of his lumbar spine disability but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by the VA medical professionals who have examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991).
The Board has considered whether there are any other Diagnostic Codes which could apply to the Veteran’s lumbar disability. Diagnostic Code 5242 allows for a rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 provides for a compensable rating only if one is not available under the general formula. Thus, it is not applicable to this case. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which a higher rating can be assigned.
The Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his lumbar spine disability that is not already service-connected. The Board notes the Veteran is already service-connected for left leg sciatica due to lumbar spine for the entire appeal period. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an evaluation in excess of 40 percent for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as his symptoms are supported by pathology consistent with the assigned rating. In this regard, the Board observes that the Veteran has continually complained of lumbar pain during the appeal period. However, the effect of the pain in the Veteran’s back is contemplated in the currently assigned 40 percent disability evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.
Thus, the Board finds that the weight of the evidence is against the claim for a rating in excess of 40 percent for service-connected lumbosacral strain. The preponderance of the evidence is against this issue, and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
(Continued on the next page)
 
Finally, the Board finds that the Veteran has not raised the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either a veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). As such, no further action as to this matter is required.
 
Lindsey M. Connor
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Peden, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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