INTERVERTEBRAL DISC SYNDROME (IVDS)

A. P. SIMPSON · 2026 · Case ID: A26036860

GRANTED

Summary

The veteran, who served in the Marine Corps from February 1991 to September 1991, appeals the Department of Veterans Affairs' (VA) February 2025 decision to reduce his disability rating for a service-connected lumbar spine condition from 40 percent to 20 percent. The veteran's claim for restoration of the 40 percent rating is granted. The Board of Veterans' Appeals (Board) found that the VA did not meet its burden of proof to demonstrate actual, sustained improvement in the veteran's ability to function under ordinary conditions of life and work, which is required for a reduction in disability rating. The Board reviewed multiple VA examinations from March 2021, January 2024, July 2024, and February 2025, along with a private treatment record from April 2024. While some examinations showed initial improvement or specific range of motion measurements that might suggest a lower rating, the veteran consistently reported significant functional limitations and severe flareups. Notably, a February 2025 examination indicated that symptoms worsened after a April 2024 laminectomy, with the return of previous symptoms and the development of post-laminectomy syndrome. The Board concluded that the evidence did not support a sustained improvement, making the reduction improper. The Board also addressed and dismissed arguments regarding a Due Process violation related to VA's contact with the veteran regarding a hearing, finding that the veteran's combined rating remained 80 percent, thus not triggering specific hearing rights, and that sufficient time existed for attorney consultation.

Rationale

VA failed to meet burden of proof for reduction; No sustained improvement in functional ability; Evidence did not support reduction

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

251229-618655

Full Decision Text

Citation Nr: A26036860
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 251229-618655
DATE: April 21, 2026

ORDER

The reduction in the disability rating for intervertebral disc syndrome (IVDS) with degenerative disc disease (DDD), lumbosacral strain, and thoracic spine sprain (collectively lumbar spine disability) from 40 percent to 20 percent disabling, effective February 12, 2025, was improper; and the claim for restoration of the 40 percent rating is granted, effective February 12, 2025.

FINDINGS OF FACT

1. In a March 2021 rating decision, the RO granted service connection for the lumbar spine disability and assigned a 40 percent rating from February 17, 2021.

2. In a May 2024 rating decision, the RO granted a temporary total evaluation for the lumbar spine disability effective April 22, 2024, based on spinal surgery, and assigned a 40 percent rating for the lumbar spine disability thereafter from June 1, 2024.

3. In a February 2025 rating decision, the RO reduced the disability rating for the service-connected lumbar spine disability from 40 percent to 20 percent disabling, effective February 12, 2025.

4. As of February 12, 2025, the 40 percent disability rating for the Veteran's service-connected lumbar spine disability had been in effect for less than five years.

5. Evidence at the time of the reduction for the service-connected lumbar spine disability did not demonstrate improvement in the Veteran's ability to function under the ordinary conditions of life and work.

CONCLUSION OF LAW

The criteria for restoration of the 40 percent rating for the lumbar spine disability from February 12, 2025, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.71a, Diagnostic Code 5243.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the Marine Corps from February 1991 to September 1991.

This appeal comes to the Board of Veterans' Appeals (Board) from a February 2025 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which reduced the disability rating for the service-connected lumbar spine disability from 40 percent to 20 percent. The Veteran appealed the decision to the Board by submitting a VA Form 10182, Notice of Disagreement, which was received on December 29, 2025, and he elected the Evidence docket. In an Evidence appeal under the Appeals Modernization Act (AMA), the Board may consider only the evidence of record at the time of the February 2025 decision on appeal, as well as any evidence submitted by the Veteran and/or representative on or within 90 days from receipt of the VA Form 10182, which would have been on March 29, 2026. However, as March 29, 2026, fell on a Sunday, the Veteran had until Monday, March 30, 2026 to submit evidence. 38 C.F.R. § 20.303.

The Board cannot consider (1) evidence submitted during the period after the RO issued the decision on appeal and before the VA Form 10182 was received, or (2) evidence submitted more than 90 days after the VA Form 10182 was received. 38 C.F.R. § 20.303.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision here. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran 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.

Within the 90-day evidentiary window, the Veteran submitted statements in support of his claim, which the Board will consider. The Board appreciates the Veteran's assistance in providing relevant evidence.

At the outset, the Board addresses the Veteran's representative's argument that the Veteran's due process rights were violated when the RO allegedly interfered with the attorney-client relationship. For the reasons discussed below,
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.

At the outset, the Board addresses the Veteran's representative's argument that the Veteran's due process rights were violated when the RO allegedly interfered with the attorney-client relationship. For the reasons discussed below, the Board does not find that a due process violation occurred and, therefore, remand is not warranted for that purpose.

By way of history, in an October 1, 2024 rating decision, the RO proposed to reduce the rating for the lumbar spine disability. On October 2, 2024, the RO sent the Veteran a letter informing him of its proposal to reduce the rating for the lumbar spine disability from 40 percent to 20 percent based on improvement. It attached a rating decision that explained its proposal to reduce. In the notification letter, the RO informed the Veteran of the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days.

On November 1, 2024, the Veteran's representative submitted correspondence in which she requested a predetermination hearing on the Veteran's behalf.

A January 25, 2025 VA 27-0820 Report of General Information reflects that an RO employee contacted the Veteran regarding the hearing request. The Veteran indicated he did not have an adequate amount of time during a previous VA examination to discuss flareups of his lumbar spine. He indicated that he wanted to withdraw his hearing and to be scheduled for a new examination. The RO informed the Veteran that he would withdraw his claim and the RO would schedule him for a new back examination.

The new VA examination was conducted on February 12, 2025.

The rating decision on appeal was issued on February 19, 2025, 26 days after the Veteran's conversation with the RO regarding waiver of the hearing.

In a December 2025 statement submitted during the 90-day evidentiary window on appeal, the Veteran wrote that the VA representative who contacted him about the hearing made it sound like it would be better off withdrawing the hearing request because the hearing would be "final." The Veteran asserted that he did not understand what that meant, but he trusted that the RO representative was trying to help him. According to the Veteran, the RO representative never asked him if he wanted to consult with his attorney before making a decision. The Veteran maintained that he thought that he had to make a decision on the spot, so he just agreed to what the RO representative was recommending.

In a December 2025 brief, the Veteran's representative argued that the RO's contact with the Veteran without notifying the representative or advising the Veteran to talk with his representative before waiving the hearing amounted to a Due Process violation. The Veteran's representative maintains that the RO tried to convince the Veteran to withdraw the hearing and attend a new examination, and the Veteran's representative was not given the opportunity to advise the Veteran. The representative maintains that had she been afforded that opportunity, she would have advised the Veteran to go forward with the hearing rather than submit to a new examination. The Veteran's representative argues that VA should not have interfered with a course of action decided on between the Veteran and his attorney. According to the representative, VA, at a minimum, should have advised the Veteran to consult with his attorney before making a decision that would alter the prosecution of the claim. Instead, the representative contends that the Veteran had to make an immediate decision and that the RO representative was advising him veteran to veteran. The Veteran's representative maintains that a new examination was not in the Veteran's best interest because it was inadequate and simply provided another estimate of flexion that exceeded the threshold for a 40 percent rating.

Initially the Board observes that the requirements for a hearing are laid out in 38 C.F.R. § 3.105(e). However, where there is no reduction in compensation payments, the procedural requirements of 38 C.F.R. § 3.105(e) do not apply. See Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010). Here, the Veteran's combined disability rating was at 80 percent before the rating reduction and his total combined disability rating remained at 80 percent after the reduction. Accordingly, the Veteran did not have a due process right to a hearing prior to the reduction.

To the extent that the Veteran's
the threshold for a 40 percent rating.

To the extent that the Veteran's representative argues that the RO interfered with the attorney-client decision making process, the Board does not find this argument compelling. Neither the representative nor Veteran have shown that the RO's decision hindered the attorney's ability to assist in preparing, presenting, or prosecuting the case. This is not an instance in which the decision being challenged was made immediately after the conversation with the Veteran. Instead, 26 days passed from that waiver request, which is sufficient time for the Veteran and his representative to discuss the waiver and strategy of the case, and, if the representative disagreed, request that the withdrawal of the hearing be withdrawn.

Additionally, VA has policies in place to ensure that representatives become aware of the substance of any telephone conversation between RO employees and claimants. As observed in Kelley v. Shinseki:

Following a telephone contact with a claimant, an RO employee is instructed to document the call by summarizing it on VA Form 21-0829, Report of General Information. M21-1MR, pt. III, subpt. iii, ch.1, sec. B.2.e. This form must be placed in the claimant's claims file and a copy must be sent to the person who holds the claimant's power of attorney. Id. Additionally, any decision notice to a claimant must refer to any oral information that the RO received from the claimant and was used to determine the claimant's entitlement to a VA benefit. See M21-1MR, pt. III, subpt. iii, ch. 1, sec. B.2.f; see also 38 U.S.C. § 5104(b) (requiring RO to provide claimants with notice of a "statement of the reasons for decision" for denying a claim and a "summary of the evidence considered by the Secretary" in a decision denying a claim); 38 C.F.R. §§19.29-19.31 (2012). Therefore, the petitioner's attorney is not likely to be kept in the dark or left to speculate regarding any statements the petitioner may have made that can negatively affect his claims.

Kelley, 26 Vet. App. 183, 191 (2013). Almost a month passed between the RO's contact with the Veteran and the rating decision on appeal, which is sufficient time for the representative to have been informed of the case file contents and to have consulted with the Veteran.

The representative argues that she wanted to present testimony regarding the Veteran's ability to function under the normal conditions of life and work. However, the Veteran had sufficient time prior to the VA examination to strategize with his attorney. Moreover, the Veteran reported on his functionality, or lack thereof, in great detail during the February 2025 VA examination. Thus, essentially the same evidence was obtained via the VA examination. The evidence does not show that the RO solicited information or evidence without an opportunity for the representative to consult with the Veteran.

The representative further argues that it was prejudicial for the Veteran to have undergone the February 2025 VA examination because it was inadequate and only helped to bolster VA's reduction argument. But that is an after-the-fact analysis of the benefits of a VA examination. Additionally, the Veteran raised concerns to the RO in November 2024 that the previous examination was inadequate because he did not adequately get to address flareups. Moreover, the representative also argues on appeal that the previous VA examination prior to the February 2025 examination was inadequate. Such an argument, if well founded, would have resulted in a new VA examination anyway. Furthermore, by affording the Veteran a new examination, the RO cured the issues the Veteran raised during the November 2024 conversation.

Based on the above analysis, the Board does not find that the Veteran's Due Process rights were violated. Accordingly, the Board will proceed with review of the merits of this appeal.

Rating Reductions

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body
the February 2025 examination was inadequate. Such an argument, if well founded, would have resulted in a new VA examination anyway. Furthermore, by affording the Veteran a new examination, the RO cured the issues the Veteran raised during the November 2024 conversation.

Based on the above analysis, the Board does not find that the Veteran's Due Process rights were violated. Accordingly, the Board will proceed with review of the merits of this appeal.

Rating Reductions

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

In disability rating cases, VA assesses the level of disability and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding an issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3.

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

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. Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344.

When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction or discontinuance will be prepared. The beneficiary must be notified at the latest address of record of the contemplated action and informed of the proposed reductions, the type of evidence that should be submitted to prevent the reduction, the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days. 38 C.F.R. § 3.105(e).

In addition, where a disability rating has been in effect for five years or more, a 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 rating. 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).

However, the provisions of 38 C.F.R. § 3.344(a) do not apply to disabilities for which the assigned ratings have been in effect for less than five years. Such disabilities are not considered stabilized and, thus, are subject to improvement. Re-examination disclosing improvement in these disabilities will warrant a reduction in rating. 38 C.F
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).

In any rating reduction case, however, not only must it be determined that an improvement in a disability had actually occurred at the time of the reduction, 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 v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of the veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Additionally, the examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992).

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 had actually improved. Cf. Dofflemyer, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995).

Restoration of the 40 percent disability rating for the lumbar spine disability.

The Veteran asserts that the RO improperly reduced his disability rating for the service-connected lumbar spine disability rating from 40 percent to 20 percent disabling.

The Veteran currently has a staged rating for the lumbar spine disability with a 40 percent rating February 17, 2021, a temporary 100 percent rating from April 22, 2024, a 40 percent rating from June 1, 2024, and a 20 percent rating from February 12, 2025, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243. The period from April 22, 2024 through May 31, 2024 is not on appeal, as the Veteran was at the maximum rating of 100 percent. Thus, that period is not for consideration.

For the reasons discussed below, the Board finds that the reduction in the disability rating from 40 percent to 10 percent from February 12, 2025, for the service-connected lumbar spine disability was improper.

Legal Criteria

The Veteran's lumbar spine disability is evaluated under the General Rating Formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Additionally, specific to the Veteran's IVDS diagnosis, IVDS will be evaluated under the general formula for rating diseases 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.

Under the General Rating Formula for Diseases and Injuries of the Spine, 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, the following ratings will apply to lumbar spine disabilities.

An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than
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.

An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.

An evaluation of 20 percent is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id.

A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Id.

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months.

Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, n. 5.

The requirement of establishing ankylosis for purposes of assigning a higher rating can be met with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). This is because "ankylosis is, in essence, a complete limitation of motion." Id. at 10. Thus, an evaluation based on ankylosis may be assigned if there is functional loss that is the equivalent of ankylosis. Id. at 11. Accordingly, the assignment of the maximum rating based on limitation in range of motion does not preclude consideration of functional loss under sections 4.40 and 4.45 of the regulations where a diagnostic code provides for a higher rating based on ankylosis. Id.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, note 1.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that
spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, note 1.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98.

Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011).

The Board notes that the record shows that the Veteran had a diagnosis of degenerative arthritis of the lumbar spine, which requires consideration of Diagnostic Code 5003, degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Analysis

As an initial matter, the Board notes that the record reflects that the Veteran's combined disability rating was 80 percent before the rating decision enacting the reduction and was 80 percent after the rating reduction. Therefore, the procedural requirements of 38 C.F.R. § 3.105(e) do not apply. See Tatum, 24 Vet. App. at 143.

Furthermore, as the 40 percent rating had not continued for five years or more, the provisions of § 3.344(a) & (b) are not applicable. See 38 C.F.R. § 3.344(c). As such, the Board must determine whether improvement in the lumbar spine disability had actually occurred at the time of the reduction and whether the improvement actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work.

The Board finds that VA did not meet its burden in showing that there was not actual improvement in the Veteran's ability to function under the ordinary conditions of life and work.

The Veteran was awarded a 40 percent rating in a March 2021 rating decision based on the clinical findings in a March 2021 VA examination report. That examination report reflects that the Veteran had current symptoms of lower back pain, leg cramps, and pain and numbness down the left leg. The Veteran stated that he used Celebrex and Tramadol to treat the pain but tried to take as little as possible because he needed to work. The Veteran described having functional limitations, such as weakness, trouble bending, trouble lifting heavy objects, balance issues, and an inability to walk, stand, lift, and climb stairs. The Veteran reported having severe back flareups, with the severity depending on activity. The Veteran described working as the Bulk Handling supervisor at the Morehead City Port
in a March 2021 rating decision based on the clinical findings in a March 2021 VA examination report. That examination report reflects that the Veteran had current symptoms of lower back pain, leg cramps, and pain and numbness down the left leg. The Veteran stated that he used Celebrex and Tramadol to treat the pain but tried to take as little as possible because he needed to work. The Veteran described having functional limitations, such as weakness, trouble bending, trouble lifting heavy objects, balance issues, and an inability to walk, stand, lift, and climb stairs. The Veteran reported having severe back flareups, with the severity depending on activity. The Veteran described working as the Bulk Handling supervisor at the Morehead City Port. He described having pain after standing for 10 mins, walking 100 yards, lifting 25 pounds, climbing eight to nine steps, and driving for an hour. The Veteran told the examiner that he was trying to lose weight, but he was not able to exercise because of his back and knee pain. He also reported having difficulty putting on shoes and socks, and that his wife helped him most of the time.

Initial range of motion measurements showed flexion to 35 degrees, extension to 5 degrees, bilateral lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. Pain was noted on all forms of movement. Range of motion measurements after observed repetitive use showed forward flexion to 25 degrees, extension to 5 degrees, bilateral lateral flexion to 10 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees, which were the same measurements the examiner also estimated for repeated use over time. During flareups, the examiner estimated that the Veteran's forward flexion would have been limited to 15 degrees and 5 degrees for extension, bilateral lateral flexion, and bilateral lateral rotation. The examiner documented muscle spasms and guarding that resulted in an abnormal gait and localized tenderness that did not result in an abnormal gait. Muscle strength testing showed normal muscle strength except for decreased strength (4/5) with left knee extension. The Veteran did not have ankylosis. The Veteran had IVDS, but no prescribed bed rest within the past 12 months. The Veteran reported the use of a brace occasionally, which he associated with knee pain.

Thus, based on the results of the March 2021 VA examination, the Veteran's range of motion measurements met the 40 percent rating criteria (forward flexion of the thoracolumbar spine is limited to 30 degrees or less), which was reflected in the March 2021 rating decision that granted service connection for a lumbar spine disability and awarded the Veteran an initial rating of 40 percent.

A January 2024 VA examination report for the lumbar spine reflects that the Veteran reported having current symptoms of back pain with radiculopathy in the left leg and radiculopathy in the right leg now present. The Veteran reported using Celebrex, Gabapentin, Aleve, and cortisone shots to treat his pain. The Veteran reported having severe flareups daily that lasted from hours to days at a time. According to the Veteran, his lumbar spine disability caused him to be unable to walk, bend over, or lift things.

Initial range of motion measurements showed forward flexion to 60 degrees, extension to 15 degrees, bilateral lateral flexion to 12 degrees, and bilateral lateral rotation to 30 degrees. Following observed repetitive use, the Veteran's forward flexion was limited to 18 degrees, extension to 15 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 30 degrees. The VA examiner estimated range of motion after repeated use over time and during flareups to be forward flexion to 5 degrees, extension to 0 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 15 degrees. The Veteran had localized tenderness that did not result in an abnormal gait, and he did not have muscle spasms or guarding. The Veteran had normal muscle strength in both lower extremities. The Veteran did not have ankylosis. The Veteran had IVDS, but no prescribed bed reset within the past 12 months. The Veteran did not report the use of an assistive device. The VA examiner found that the lumbar spine disability resulted in functional loss due to trouble with prolonged standing, walking, bending over, and lifting things. In the remarks section, the examiner wrote that there was worsening of the Veteran's symptoms, but no change in diagnosis and no additional diagnoses.

An April 2024 private treatment record reflects that the Veteran underwent lumbar decompression surgery.

In a May 2024 rating decision, the RO assigned a temporary total evaluation based on the April 2024 surgery, and then
extremities. The Veteran did not have ankylosis. The Veteran had IVDS, but no prescribed bed reset within the past 12 months. The Veteran did not report the use of an assistive device. The VA examiner found that the lumbar spine disability resulted in functional loss due to trouble with prolonged standing, walking, bending over, and lifting things. In the remarks section, the examiner wrote that there was worsening of the Veteran's symptoms, but no change in diagnosis and no additional diagnoses.

An April 2024 private treatment record reflects that the Veteran underwent lumbar decompression surgery.

In a May 2024 rating decision, the RO assigned a temporary total evaluation based on the April 2024 surgery, and then assigned a 40 percent rating from June 1, 2024, based on forward flexion limited to 30 degrees or less. In the rating decision, the RO informed the Veteran that they would be obtaining a new examination as well to determine his current level of disability following the surgery, which occurred in July 2024.

The July 2024 VA examination report reflects that the Veteran reported having current symptoms of lower back pain/pressure and shooting pain that ran down his legs, with the left leg being worse than the right leg. The Veteran reported using Tramadol, Gabapentin, Celebrex, steroid injections, physical therapy, and surgery to treat his back. The Veteran reported having daily flareups that were moderate in severity and lasted between minutes to one hour. Regarding functional loss, the Veteran reported he could not bend over to pick up objects from the floor.

Upon physical examination, initial range of motion measurements showed forward flexion to 60 degrees and 20 degrees for extension, bilateral lateral flexion, and bilateral lateral rotation. There was no change in range of motion after observed repetitive use. The examiner estimated range of motion after repeated use over time to be forward flexion to 50 degrees, and 15 degrees for extension, bilateral lateral flexion, and bilateral lateral rotation. During flareups, the examiner estimated forward flexion to 50 degrees, and 10 degrees for extension, bilateral lateral flexion, and bilateral lateral rotation. The Veteran had localized tenderness that did not result in an abnormal gait and did not have muscle spasms or guarding. Muscle strength was normal except decreased (4/5) muscle strength with bilateral ankle dorsiflexion and great toe extension. There was no ankylosis. The Veteran had IVDS, but no prescribed bed reset within the past 12 months. The Veteran did not report the use of an assistive device. The VA examiner found that the lumbar spine disability created a functional impact due to limitations with prolonged sitting, standing, walking, or bending to lift objects over 10 pounds.

Following the July 2024 VA examination, the RO issued an October 2024 rating decision proposing to reduce the disability rating for the lumbar spine from 40 percent to 20 percent.

In January 2025, the Veteran told the RO that during the last VA examination he did not have adequate time to discuss his flareups and he wanted a new VA examination. In February 2025, the Veteran was afforded another lumbar spine VA examination.

During the February 2025 VA examination, the Veteran reported constant dull aching back and bilateral lower extremity radiculopathy with pain, numbness, tingling, and weakness. He treated his back pain with Tramadol, rest, and elevating his feet. The Veteran reported having severe daily flareups that lasted hours. The Veteran reported having functional loss that prevented him from doing much of anything and that he had pain getting in and out of his car or a shower, going up or down steps, and a feeling of imbalance.

Initial range of motion measurements showed forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and bilateral lateral rotation to 20 degrees. There was no change in range of motion following observed repetitive use or in the estimated range of motion after repeated use over time. During flareups, the examiner estimated forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and bilateral lateral rotation to 20 degrees. The Veteran had localized tenderness that did not result in an abnormal gait and he did not have muscle spasms or guarding. The examiner identified the following additional factors contributing to disability: interference with standing, disturbances of locomotion, less movement than normal, and weakened movement. Muscle strength was normal in the right lower extremity except for decreased (4/5) muscle strength with hip flexion. In the left lower extremity, the Veteran had normal muscle strength with ankle dorsiflexion and great toe extension, but decreased muscle
examiner estimated forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and bilateral lateral rotation to 20 degrees. The Veteran had localized tenderness that did not result in an abnormal gait and he did not have muscle spasms or guarding. The examiner identified the following additional factors contributing to disability: interference with standing, disturbances of locomotion, less movement than normal, and weakened movement. Muscle strength was normal in the right lower extremity except for decreased (4/5) muscle strength with hip flexion. In the left lower extremity, the Veteran had normal muscle strength with ankle dorsiflexion and great toe extension, but decreased muscle strength (4/5) with hip flexion, knee extension, and ankle plantar flexion. The Veteran did not have ankylosis and he denied the use of assistive devices.

In the functional impact section of the report, the examiner documented that the Veteran was a supervisor at Moorhead City Port and lost 0-1 week of work time in last 12 months due to the lumbar spine disability. The Veteran reported constant dull aching lower back pain, increased radiculopathy symptoms, and that he felt as though he could not do much of anything. He stated he had difficulties getting in or out of a car or shower, had trouble using steps, and felt like he would fall. In the remarks section, the examiner noted that a goniometer was used. The examiner also documented that in an attempt to improve symptoms, the Veteran had a laminectomy in April 2024 with mild improvement initially, but shortly after, all of his previous symptoms came back, with the Veteran reporting worsening back pain and radiculopathy. The examiner noted that the Veteran now had an additional diagnosis of post-laminectomy syndrome (PLS), which is a condition characterized by persistent or recurrent pain after spinal surgery, specifically a laminectomy. The examiner wrote that this new diagnosis addressed the Veteran's increase in and new symptoms associated with the lumbar spine disability.

Based on the above, the evidence shows that following the April 2024 spinal surgery, the Veteran had initial improvement in symptoms, but thereafter those symptoms worsened. Thus, the Board cannot find that there was sustained change in the disability that reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. This is particularly so in light of the February 2025 VA examiner's finding that following the April 2024 laminectomy there was mild improvement but all previous symptoms returned along with an additional disability, PLS that increased and worsened the Veteran's symptoms. A December 2024 VA treatment record reflects that the Veteran did not participate regularly in physical activity as he was limited by pain due to recent knee and back surgery. He reported he was trying to start walking again, which is evidence against improvement in the Veteran's ability to function. The Veteran's reports of functional loss and limitation have been generally consistent throughout the VA examinations, with reported difficulty standing, walking, bending over, lifting objects, driving, and using stairs. Additionally, while the Veteran reported moderate flareups in July 2024, he reported severe flareups in February 2025, which is consistent with the February 2025 VA examiner's finding that the Veteran had initial improvement following the surgery, but that improvement was not sustained.

Accordingly, despite the improvement in forward flexion, the Board finds that VA has not shown actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Given this finding, the Board finds it unnecessary to address the Veteran and his representative's contentions related to the adequacy of the VA examinations.

In light of the evidence above, the RO did not meet its burden in showing actual, sustained improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, the RO improperly reduced the disability rating from 40 percent to 20 percent, and restoration of the 40 percent disability rating for the service-connected lumbar spine disability is restored as of February 12, 2025.

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Tarkenton, A.

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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