LUMBAR SPINE DISABILITY

JONATHAN B. KRAMER · 2023 · Case ID: A23017212

MIXED

Summary

The veteran, who served from March 1983 to October 1986, appeals the reduction of his disability rating for a service-connected lumbar spine strain with chronic pain syndrome. The Regional Office (RO) reduced the rating from 40 percent to 20 percent effective January 20, 2020. The Board found this reduction improper because the RO failed to comply with the procedural requirements of 38 C.F.R. § 3.344, which governs rating reductions for disabilities in place for five years or more. The RO did not adequately address whether the Veteran's condition had materially improved or if such improvement would be maintained under ordinary life conditions. The Board noted that the Veteran's lay and medical evidence throughout the period continued to show significant functional impairment, including reduced range of motion and flare-ups. The Board emphasized that the RO impermissibly placed the burden on the Veteran to show worsening, rather than demonstrating improvement. Consequently, the Board found the reduction void ab initio and ordered the restoration of the 40 percent rating effective January 20, 2020. The Board did not need to address the evidentiary merits of the reduction due to the procedural error. The case also involved a TDIU claim and an earlier effective date issue, which are being addressed in a separate Board decision.

Rationale

Reduction from 40% to 20% effective January 20, 2020, was improper.; RO failed to comply with 38 C.F.R. § 3.344 regarding rating reductions.; No adequate discussion of material improvement or its maintenance under ordinary conditions.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

200709-96786

Full Decision Text

Citation Nr: A23017212
Decision Date: 07/24/23 Archive Date: 07/24/23

DOCKET NO. 200709-96786
DATE: July 24, 2023

ORDER

The reduction in rating of the service-connected lumbar spine strain with chronic pain syndrome (lumbar spine disability), from 40 percent disabling to 20 percent disabling, effective January 20, 2020, was not proper; therefore, the 40 percent rating is restored effective as of that date.

FINDINGS OF FACT

1. In a February 2020 rating decision, the Agency of Original Jurisdiction/Regional Office (AOJ/RO) reduced the Veteran's disability rating for the service-connected lumbar spine disability from 40 to 20 percent, effective January 20, 2020; the reduction was upheld/continued on Higher-Level Review in July 2020.

2. At the time of the reduction, the 40 percent disability rating had been in effect for a period of more than five years.

3. The rating reduction for the lumbar spine disability did not comport with applicable statutes and regulations.

CONCLUSION OF LAW

The reduction in rating of the service-connected lumbar spine disability is void ab initio, and the criteria for restoration of the 40 percent disability rating, effective January 20, 2020, are met. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. § 3.344.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from March 1983 to October 1986.

By way of brief procedural history, following the issuance of a February 2020 rating decision that decreased the rating for a lumbar spine strain to 20 percent, effective January 20, 2020, and granted entitlement to a TDIU, effective December 6, 2018, the Veteran opted into the AMA system by submitting an election form in February 2020 and selecting the Higher Level Review (HLR) lane with an informal conference.

An informal conference was held in July 2020. A July 2020 HLR rating decision continued the reduced rating of 20 percent rating for the lumbar strain and denied an earlier effective date (EED) for the grant of a TDIU. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the AOJ.

In a July 2022 decision, the Board denied (1) entitlement to a rating in excess of 20 percent for the lumbar spine disability for the period beginning January 20, 2020; and (2) entitlement to an effective date earlier than December 6, 2018, for the grant of a TDIU. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (CAVC). In January 2023, the CAVC issued a Joint Motion for Remand (JMR). In the JMR, the parties found that the Board had erred (1) in failing to consider whether the rating reduction for the lumbar spine disability was proper, and (2) by not discussing whether there was an earlier claim for a TDIU.

With respect to the issue of entitlement to an effective date earlier than December 6, 2018, for the award of a TDIU, historically, the Board notes that the Veteran submitted an increased rating claim for his lumbar spine disability on January 30, 2009. The claim was denied in a May 2009 rating decision. The Veteran submitted a Notice of Disagreement (NOD) in June 2009 and the RO subsequently issue a Statement of the Case (SOC) in November 2009. A timely VA Form 9 was received by VA on December 23, 2009. The Board notes that the Veteran also submitted evidence of unemployability in connection with January 2009 claim for a higher rating. See, e.g., Social Security Administration (SSA) Disability Determination.

In an August 2010 rating decision, the RO granted an increased rating of 40 percent, effective from January 2, 2010, for the service-connected lumbar spine disability. The RO also granted service connection for peripheral neuropathy of the lower right and left extremities, assigning 10 percent ratings effective from January 2, 2010. An August 2010 Supplemental Statement of the Case (SSOC) reflected the grant of an increased rating of 40 percent for the lumbar spine disability. No further action on the Veteran's claim for an increased rating was taken by VA until the issuance of an additional SSOC in April 2020. Notably, the SSOC addressed the following issues: (1) Evaluation of lumbar strain with chronic pain syndrome at 20 percent disabling prior to January 2, 2010; (2) Evaluation of lumbar strain with chronic pain syndrome at 40 percent disabling effective January 2, 2010; and (3) Evaluation of lumbar strain with chronic pain syndrome at 20 percent disabling 20 percent effective January 20, 2020.

In April 2020, the Veteran opted into the AMA system by submitting a VA Form 20-0996 (Decision Review Request: Higher Level Review) for those issues. An August 2020 HLR rating decision discovered a duty to assist error in gathering evidence in support of the claim; however, a subsequent October 2020 rating decision continued to deny a higher rating for the service-connected lumbar spine disability. The Veteran then submitted a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)); this is currently the subject of a separate AMA appeal stream.

Based on a review of the above evidence and procedural history, it appears that the TDIU issue was initially raised in the context of the Veteran's January 2009 claim for an increased rating for the lumbar spine which has been pending since that time. It follows that the issue of entitlement to an effective date earlier than December 6, 2018, is inextricably intertwined with the AMA appeal for a higher rating for the lumbar spine and will be addressed in a separate Board decision.

The Veteran contends that the 40 percent rating for his lumbar spine disability should be restored. See, e.g., February 2020 Request For Higher Level Review. As noted above, the Court remanded this matter for the Board for the Board to specifically consider whether the reduction in rating from 40 percent to 20 percent, effective January 20, 2020, was proper.

By way of brief procedural history, in a June 1987 rating decision, the RO granted service connection for a lumbar spine strain, chronic, persistent, with symptomatic sciatica, right lower extremity. A 10 percent evaluation was assigned, effective October 29, 1986. In a February 2002 rating decision, the RO granted an increased rating of 20 percent for the service-connected lumbar spine disability, effective May 24, 2001. In an August 2010 rating decision, the RO granted an increased rating of 40 percent for the service-connected lumbar spine disability, effective January 2, 2010.

In December 2018, the Veteran submitted an Intent to File a claim. In March 2019, the Veteran filed a claim for entitlement to a TDIU, contending that his service-connected disabilities, including his lumbar spine disability, caused him to be unemployable. In August 2019 and December 2019 rating decisions, the RO continued the 40 percent rating for the lumbar spine disability. In a February 2020 rating decision, the RO reduced the rating for the service-connected lumbar spine disability to 20 percent, effective January 20, 2020, and granted entitlement to a TDIU, effective December 6, 2018. The Veteran has appealed the rating reduction, contending that the 40 percent rating should be reinstated.

Applicable Law and Regulations

Generally, VA must abide by specific procedural protections that apply when a veteran's rating is reduced. 38 C.F.R. § 3.105(e). When a rating reduction results in a reduction in the overall amount of compensation paid, VA must comply with the notice procedures of 38 C.F.R. § 3.105(e). Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The Board observes that the rating action did not reduce the Veteran's overall rating in this case. Thus, the procedural safeguards of 38 C.F.R. § 3105(e) do not apply.

That notwithstanding
percent rating should be reinstated.

Applicable Law and Regulations

That notwithstanding, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). 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).

Furthermore, under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens and Brown, supra. If doubt remains, after affording due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344 (b). The rating decision and statement of the case pertaining to the rating reductions must reflect full consideration of the procedural due process provisions of 38 C.F.R. § 3.344 (a)-(b).

Analysis

It is noted at the outset that the 40 percent rating for the lumbar spine disability had been in effect from January 2010 to January 2020. Thus, the rating had been in effect for more than five years, and the provisions of 38 C.F.R. § 3.344(a) apply.

In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

Briefly, VA treatment records dated throughout 2019 detail complaints and findings of lumbar spine pain and debility.

In a March 2019 statement, the Veteran's wife detailed the Veteran's "severe" and chronic low back pain. She stated that the back pain resulted in falls, an inability to sleep, and interference with activities such as driving.

During his July 2019 VA examination, the Veteran reported an increase in his back pain since the last examination in 2013. He endorsed constant flareups of pain with functional loss including difficulty sitting, walking, standing, and bending. Forward flexion was limited to 40 degrees; extension to 30 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 30 degrees.

In a December 2019 statement, the Veteran reported that he has struggled "greatly" with back pain since his surgery and that he is "barely mobile and mostly housebound at this time." He endorsed constant use of a back brace.

Private treatment records dated in 2019 reflect complaints of "moderate and worsening" chronic lumbar back pain with stiffness and decreased range of motion.

A January 2020 VA examination report reflects complaints of back pain, bilateral lower extremity, numbness, burning, and tingling with flareups occurring with prolonged walking or standing. Forward flexion of the lumbar spine was limited to 40 degrees; extension to 10 degrees; and all other planes of motion to 15 degrees. With repeated use over time and flareups, flexion was limited to 35 degrees; extension to 5 degrees; and all other planes of motion to 10 degrees. The examiner noted that the Veteran was unable to perform any job duties requiring him to walk or stand for extended periods of time. He required constant use of a cane.

In this case, the Board finds that the reduction in rating from 40 to 20 percent, effective January 20, 2020, is void because the provisions of 38 C.F.R. § 3.344 were not met. Notably, the February 2020 rating decision that effected the reduction, never cited to or discussed the provisions of 38 C.F.R. § 3.344. While the rating decision indicated that "sustained improvement" had been shown, the RO did not address whether any improvement in the disability actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath, 1 Vet. App. at 594. The Board notes that the lay and medical evidence during this period continued to reflect significant functional impairment, including flare-ups of pain that resulted in reduced range of motion and interference with performance of job duties that required prolonged walking or standing. There was also no finding by the RO that the January 2020 examination used as a basis of reduction was as complete as those upon which payment was authorized or continued.

Essentially, the February 2020 rating decision shows that the RO analyzed the issue of reduction of the 40 percent rating just as it would claims for an increased rating, by focusing on what the evidence must show for a compensable rating rather than discussing the overall improvement of the Veteran's service-connected disability. Whenever the RO in this way impermissibly places the burden of proof on the Veteran to show his disability has worsened, rather than the RO showing it has improved, the RO has not complied with 38 C.F.R. § 3.344.

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. Such an omission is 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 rating assigned for the lumbar spine disability must be restored, effective January 20, 2020. Given the outcome warranted in view of this procedural error, the Board need not fully address, from an evidentiary standpoint, the actual merits of the reduction.

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board H. Hoeft

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.

Analyze in VA Law Explorer