DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

BARBARA B. COPELAND · 2019 · Case ID: 19159370

GRANTED

Summary

The veteran, who served from March 1980 to February 1984, appeals two issues: the denial of service connection for cervical spine degenerative disc disease with stenosis, and the propriety of a reduction in his disability rating for degenerative disc disease with anterior osteophytic ridging L3-L4. Regarding the claim for service connection for cervical spine degenerative disc disease with stenosis, the Board found that the February 2005 rating decision denying this claim is final, as no new and material evidence has been received since that decision to reopen the claim. The Board reviewed the evidence submitted since February 2005 and determined it was not material, as it did not raise a reasonable possibility of substantiating the claim of service connection. Therefore, the claim for service connection for cervical spine degenerative disc disease with stenosis is not reopened. Regarding the reduction in rating for degenerative disc disease with anterior osteophytic ridging L3-L4, the Board found that the reduction from 40 percent to 10 percent, effective November 1, 2016, was improper. The veteran's 40 percent rating had been in effect for more than five years, making 38 C.F.R. § 3.344(a) and (b) applicable. However, the rating decisions failed to consider whether the VA examinations were as full and complete as the one establishing the higher rating, and whether material improvement would be maintained under ordinary conditions. Because the Board failed to consider these provisions, the reduction was void ab initio. The 40 percent disability rating for degenerative disc disease with anterior osteophytic ridging L3-L4 is restored, effective November 1, 2016.

Rationale

February 2005 rating decision is final.; No new and material evidence received since February 2005.; Additional evidence was not material to substantiate the claim.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-60 615

Full Decision Text

Citation Nr: 19159370
Decision Date: 07/31/19 Archive Date: 07/31/19

DOCKET NO. 16-60 615
DATE: July 31, 2019

ORDER

As new and material evidence has not been received, the claim for entitlement to service connection for cervical spine degenerative disc disease with stenosis claimed as a neck condition is not reopened.

The reduction of rating for degenerative disc disease with anterior osteophytic ridging L3-L4 from 40 percent to 10 percent, effective November 1, 2016 was not proper, and is void ab initio.

FINDINGS OF FACT

1. A February 2005 rating decision denied the Veteran’s original claim for entitlement to service connection for cervical spine degenerative disc disease with stenosis. The Veteran was notified of the decision and his appellate rights but did not timely appeal the decision or submit new and material evidence within the one year time period.

2. Evidence received since the February 2005 rating decision is not material and does not raise a reasonable possibility of substantiating the claim of service connection for a service connection for cervical spine degenerative disc disease with stenosis.

3. In an August 2015 rating decision, the RO proposed to reduce the Veteran’s disability rating for degenerative disc disease with anterior osteophytic ridging L3-L4 from 40 percent to 10 percent.

4. In an August 2016 rating decision, the RO implemented the proposed reduction of degenerative disc disease with anterior osteophytic ridging L3-L4 from 40 percent to 10 percent, effective November 1, 2016.

5. The rating reduction of degenerative disc disease with anterior osteophytic ridging L3-L4 was not carried out in accordance with applicable procedures and is void ab initio.

CONCLUSIONS OF LAW

1. The February 2005 rating decision denying entitlement to service connection for a neck condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018).

2. Since the February 2005 rating decision, new and material evidence has not been received to reopen the claim of entitlement to service connection for cervical spine degenerative disc disease with stenosis. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302 (2018).

3. The reduction in rating for degenerative disc disease with anterior osteophytic ridging L3-L4 from 40 percent to 10 percent effective November 1, 2016 was not proper and is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2,.4.3, 4.7, 4.10, 4.13, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1980 to February 1984.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Lincoln, Nebraska.

1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for cervical spine degenerative disc disease with stenosis

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final
finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2018). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18.

Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2).

Nevertheless, the question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, this is where the Board’s analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383.

Historically, the Veteran claimed entitlement to service connection for a neck disorder which was initially denied in a February 2005 rating decision which determined that a review of the service treatment records was negative for any treatment or diagnosis of a neck injury while in military service. Additionally, although the Veteran had a current condition, service connection for a neck injury was denied since the condition neither occurred in nor was caused by service.

The Veteran did not appeal the decision. As a result, the February 2005 rating decision is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1100 (2018). Therefore, new and material evidence is required to reopen the claim for a neck disorder, regardless of how the AOJ characterized the issue. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b). However, here, such regulation is inapplicable as no new and material evidence pertaining to the Veteran’s claim for service connection for a neck disorder was received prior to the expiration of the appeal period stemming from the February 2005 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999).

In June 2016, the Veteran filed a new claim for entitlement to service connection for a neck disorder. In an August 2016 rating decision, the RO denied the claim characterized as entitlement to service connection for cervical spine degenerative disc disease with stenosis. The Veteran submitted a timely appeal. The February 2005 rating action, therefore, represents the last previous final decision on any basis as to the issue of whether the Veteran is entitled to service connection for a left shoulder disorder. Evans v. Brown, 9 Vet. App. 273 (1996).

According to the records received since the February 2005 rating, the Veteran continued his treatment for various disabilities. There is no evidence of record that the Veteran’s neck disorder began during his military service and also no support of the Veteran’s contention any neck disorder resulted from an injury during his military service.

While the Board acknowledges that the evidence received since the February 2005 rating was not previously of record, it is not “material” to the Veteran’s claim as it does not establish that the Veteran’s neck disorder occurred in or was caused by his military service. Thus, the VA treatment/examination records since the February 2005 rating decision do not address the Veteran’s contentions and there is no indication his symptoms and assessments stemmed from his military service. Therefore, the additional evidence does not raise a reasonable possibility of substantiating the claim and, while “new” it is not “material.”

In sum, a review of the evidence of record fails to reveal any new and material evidence suggesting that the Veteran’s neck condition is related to service. He has not informed VA of any evidence not of record that demonstrates this unestablished fact.

The Board recognizes the threshold for reopening a claim is low, but it is a threshold nonetheless and, as described, the evidence that has been added since February 2005 clearly does not reach that threshold. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

As new and material evidence has not been received, the claim of entitlement to service connection for cervical spine degenerative disc disease with stenosis is not reopened.

2. Whether the reduction of the service-connected degenerative disc disease with anterior osteophytic ridging L3-L4 from 40 percent disabling to 10 percent disabling effective November 1, 2016 was proper

When reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). As already noted, the Veteran received proper notice under 38 C.F.R. § 3.105(e).

Where a rating has been in effect for five
2016 was proper

Where a rating has been in effect for five years or more, the 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 evaluation. 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 reflected, 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). Kitchens v. Brown, 7 Vet. App. 320 (1995).

Where, however, a rating has been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not for application, and reexaminations disclosing improvement in the disability will warrant reduction in rating. 38 C.F.R. § 3.334(c). If such improvement is shown, to warrant reduction it must also be determined that the improvement actually reflects 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) (citing 38 C.F.R. § 4.10).

Failure to consider and apply the applicable provisions of 38 C.F.R. § 3.344 renders a rating decision void ab initio because the action is not in accordance with the law. See Greyzck v. West, 12 Vet. App. 288, 292 (1999), see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).

The Board notes that the Veteran’s degenerative disc disease with anterior osteophytic ridging L3-L4 disability rating was in effect for more than five years at the time of the reduction. Therefore, the provisions of 38 C.F.R. § 3.344(a)-(b) apply.

In the present case, the Veteran contends that the reduction was improper. An August 2015 rating decision reflects the proposed reductions of the schedular rating for a degenerative disc disease with anterior osteophytic ridging L3-L4 disability from 40 percent to a 10 rating. The Veteran was notified of the proposed action, the reasons and bases therefor, and was given the required 60 days to present additional evidence and to request a hearing. The RO subsequently implemented the rating reductions in an August 2016 rating decision, with an effective date of November 1, 2016.

The Board determines that the reductions in rating for the degenerative disc disease with anterior osteophytic ridging L3-L4 disability was not proper.

As an initial matter, VA followed correct procedure by providing a rating decision setting forth all material facts and reasons why the Veteran’s rating was to be reduced. The Veteran was also provided a letter that offered him a hearing and the opportunity to submit additional evidence. The Veteran was notified of the action taken and his appellate rights in a September 2015 letter. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e), (i) (2018).

In an August 2016 rating decision, the AOJ reduced the Veteran’s disability rating to 10 percent, effective November 1, 2016, based on improved range of motion findings noted in a VA examination report from May 2012. The August 2016 rating decision noted that the August 2015 and July 2016 VA examination report findings for range of motion should not be used for rating purposes.

Because the Veteran’s 40 percent rating had been in effect more than five years at the time of the August 2016 rating decision, 38 C.F.R. § 3.344(a) and (b) are applicable. However, the August 2015 rating decision, August 2016 rating decision, and October 2016 Statement of the Case all fail to reflect consideration of the provisions of 38 C.F.R. § 3.344. Specifically, these AOJ decisions all fail to address whether the May 2012, August 2015, or July 2016 VA examination reports were as full and complete as the examination upon which the original rating was established. Additionally, these AOJ decisions all fail to discuss whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995).

The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio, as such omissions are error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, the 40 percent disability rating for the Veteran’s service-connected degenerative disc disease with anterior osteophytic ridging at L3-L4 is restored, effective November 1, 2016.

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate 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.

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