On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri
THE ISSUES
1. Propriety of a November 1, 2006, reduction of a 20
percent rating for a herniated L5-S1 intervertebral disc to
10 percent.
2. Propriety of a November 1, 2006, reduction of a 30
percent rating for S1 radiculopathy of the right lower
extremity to 20 percent.
3. Entitlement to a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. B. Freeman, Associate Counsel
INTRODUCTION
The appellant served on active duty from January 1975 to
January 1978.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2006 rating decision of the RO
in St. Louis, Missouri, which denied TDIU and proposed the
reduction of the appellant's ratings for a herniated L5-S1
disc and S1 radiculopathy of the right lower extremity, and
from an August 2006 rating decision which reduced the ratings
from 20 to 10 percent and 30 to 20 percent, respectively.
The appellant testified before the undersigned at a December
2008 videoconference hearing. A transcript has been
associated with the file. Evidence has been received
subsequent to the final consideration of the claim by the RO.
The appellant has waived RO consideration of that evidence.
The Board may consider the appeal. 38 C.F.R. § 20.1304.
The issue of TDIU is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The RO complied with the procedural requirements for
reducing the appellant's disability ratings, to include
proper notification of the proposal to reduce the disability
ratings and giving him an opportunity to submit evidence.
2. The disability ratings for the appellant's service-
connected herniated L5-S1 intervertebral disc and S1
radiculopathy of the right lower extremity had been in effect
for less than five years at the time they was reduced.
3. At the time of the reduction in rating in November 1,
2006, there was no objective evidence demonstrating
improvement in the severity of the appellant's herniated L5-
S1 intervertebral disc.
4. At the time of the reduction in rating in November 1,
2006, there was no objective evidence demonstrating
improvement in the severity of the appellant's S1
radiculopathy of the right lower extremity.
CONCLUSION OF LAW
1. The RO satisfied the procedural requirements governing
the reduction in ratings prior to effectuating its rating
decision of August 2006 implementing the proposed reductions.
38 C.F.R. § 3.105(e) (2008).
2. The reduction of the appellant's disability rating for a
herniated L5-S1 intervertebral disc from 20 percent to 10
percent was not warranted, and the requirements for
restoration have been met. 38 U.S.C.A. § 1155 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.13, 4.71a,
Diagnostic Code 5243 (2008).
3. The requirements for restoration of the appellant's
disability rating for S1 radiculopathy of the right lower
extremity from 20 percent to 30 percent have been met. 38
U.S.C.A. § 1155 (West 2002 & Supp. 2008); 38 C.F.R. §§
3.105(e), 3.344, 4.2, 4.13, 4.124a, Diagnostic Code 8621
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Board has thoroughly reviewed all the evidence in the
appellant's claims folders. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
evidence submitted by the appellant or on his behalf. See
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)
(the Board must review the entire record, but does not have
to discuss each piece of evidence). The analysis below
focuses on the most salient and relevant evidence and on what
this evidence shows, or fails to show, on the claims. The
appellant must not assume that the Board has overlooked
pieces of evidence that are not explicitly discussed herein.
See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the appellant).
The Board must assess the credibility and weight of all
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Equal
weight is not accorded to each piece of evidence contained in
the record; every item of evidence does not have the same
probative value. When all the evidence is assembled, VA is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
I. Veterans Claims Assistance Act (VCAA)
As to the appellant's ratings reductions, those ratings have
been restored, as discussed below. As such, the Board finds
that any error related to the VCAA on those appeals is moot.
See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2008); 38
C.F.R. § 3.159 (2008); Mlechick v. Mansfield, 503 F.3d 1340
(2007).
II. Ratings ReductionsProcess of Reduction
VA regulations provide that where reduction in evaluation of
a service-connected disability is considered warranted and
the lower evaluation would result in a reduction or
discontinuance of compensation payments currently being made,
a rating proposing the reduction or discontinuance is to be
prepared setting forth all material facts and reasons. See
38 C.F.R. § 3.105(e) (2008). The law also requires that the
veteran be given 60 days to present additional evidence
showing that compensation should be continued at the present
level. Id.
In this case, the above procedural requirements were met.
The RO issued a rating decision in May 2006, which proposed
the reduction in the disability ratings for the appellant's
service-connected herniated L5-S1 intervertebral disc and S1
radiculopathy of the right lower extremity. The appellant
was advised of the proposed reduction on June 22, 2006. The
appellant did not respond. The RO issued a rating decision
in August 23, 2006, implementing the proposed reduction,
effective from November 1, 2006. The appellant was notified
of this reduction by letter dated August 23, 2006.
Regulation provides further that the effective date of the
reduction is the last day of the month in which a 60-day
period from notice of the reduction expires. See 38 C.F.R. §
3.105(e). Accordingly, making the reduction effective from
November 1, 2006, was proper under the regulation.
In addition, for ratings in effect for five years or more,
there are other specific requirements that must be met before
VA can reduce a disability rating. See 38 C.F.R. § 3.344
(2008).
The United States Court of Appeals for Veterans Claims
(Court) has held that the appropriate dates to be used for
measuring the five-year time period, according to VA
regulation, are the effective dates, i.e., the date that the
disability rating subject to the reduction became effective
is to be used as the beginning date and the date that the
reduction was to become effective is to be used as the ending
date. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993).
The appellant was assigned the 20 percent disability rating
for his herniated L5-S1 intervertebral disc in a rating
decision of January 2005, effective from October 14, 2004.
The appellant was assigned the 30 percent disability rating
for his S1 radiculopathy of the right lower extremity in the
same January 2005 rating decision which granted service
connection for the condition, also effective from October 14,
2004. Therefore, when his ratings were reduced effective
November 1, 2006, they had been in effect for less than five
years, and the provisions of 38 C.F.R. § 3.344 do not apply.
In this case, then, the RO applied the regulations regarding
the procedure for reductions in ratings properly. The
question that remains is whether the evidence on which the
reduction was based supported the reduction.
Evidentiary Basis for Reduction
Disability ratings are intended to compensate reductions in
earning capacity as a result of the specific disorder. The
ratings are intended, as far as practicably can be
determined, to compensate the average impairment of earning
capacity resulting from such disorder in civilian
occupations. See 38 U.S.C.A. § 1155 (West 2002 & Supp.
2008). Consideration of the whole recorded history is
necessary so that a rating may accurately reflect the
elements of disability present. See 38 C.F.R. §§ 4.1 and 4.2
(2008); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is
also necessary to evaluate the disability from the point of
view of the veteran working or seeking work, 38 C.F.R. § 4.2,
and to resolve any reasonable doubt regarding the extent of
the disability in the veteran's favor. See 38 C.F.R. § 4.3
(2008).
While the regulations require review of the recorded history
of a disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. If there is a
question as to which evaluation to apply to the appellant's
disability, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7 (2008). When any change in evaluation is
to be made, the rating agency should assure itself that there
has been an actual change in the conditions, for better or
worse, and not merely a difference in thoroughness of the
examinations or in use of descriptive terms. See 38 C.F.R. §
4.13 (2008).
Concerning the appellant's claims for restoration of a 20
percent rating for his herniated L5-S1 intervertebral disc
and 30 percent rating for S1 radiculopathy of the right lower
extremity, if there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to determination of this issue, the benefit of the doubt in
resolving the issue is to be given to the appellant. See 38
U.S.C.A. § 5107(a) (West 2002 & Supp. 2008); Brown, 5 Vet.
App. at 421. In other words, the reduction in the
appellant's disability rating would have to have been
supported by a preponderance of the evidence. The Board is
required to ascertain in any rating reduction case, based
upon review of the entire record, whether the evidence
reflects an actual change in the disability, whether the
examination reports reflecting such change are based upon
thorough examination, and whether any improvement actually
reflects improvement in the appellant's ability to function
under the ordinary conditions of life and work. See Brown, 5
Vet. App. at 420- 421.
The appellant has been rated under Diagnostic Code (DC) 5243
for his herniated L5-S1 intervertebral disc. See 38 C.F.R.
§ 4.71a (2008). Under the Diagnostic Code 5243, an
evaluation may be made under the rating criteria for
incapacitating episodes or under the General Rating Formula
for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a,
Diagnostic Code 5243 (2008). When the appellant was first
assigned the 20 percent rating, the rating was based on
localized tenderness and abnormal spinal contour under the
General Ratings Formula, not on the basis of incapacitating
episodes. The evidence at the time of the prior rating did
not reflect incapacitating episodes.
Under the General Rating Formula for Diseases and Injuries of
the Spine and considering only those criteria applicable to
the lumbar spine, a 10 percent rating is for application with
forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees; or, combined range
of motion of the thoracolumbar spine greater than 120 degrees
but not greater than 235 degrees; or, muscle spasm, guarding,
or localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or vertebral body fracture with loss
of 50 percent or more of the height. See 38 C.F.R. § 4.71a,
DC 5237-5243. A 20 percent evaluation is assigned for
forward flexion of the thoracolumbar spine greater than 20
degrees but not greater than 60 degrees; or, the combined
range of motion of the thoracolumbar spine not greater than
120 degrees; or, muscle spasm or guarding severe enough to
result in an abnormal gait or abnormal spinal contour such as
scoliosis, reversed lordosis, or abnormal kyphosis. Id. A
40 percent evaluation requires forward flexion of the
thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine. Id. A 50
percent evaluation requires unfavorable ankylosis of the
entire thoracolumbar spine. Id. A 100 percent evaluation is
warranted where unfavorable ankylosis of the entire spine is
demonstrated. Id. These evaluations are for application
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.
For VA compensation purposes, normal forward flexion of the
thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30
degrees, left and right lateral flexion are 0 to 30 degrees,
and left and right lateral rotation are 0 to 30 degrees. 68
Fed. Reg. 51454, 51456 (codified at 38 C.F.R. § 4.71a,
Diagnostic Codes 5235 to 5243, Note (2)). These ranges are
also the maximum for range of motion calculations. Id.
Treatment records from the Headache and Pain Center and Dr.
Greenfield were associated with the file. The appellant had
undergone therapy from October to December 2004 through the
facility. The records note abnormal gait and restricted
range of motion, but did not include specific measurements or
what range they considered normal. The appellant received
caudal epidural injections. The November 2004 entries
indicate improvement in gait, station and range of motion.
A pair of December 2004 letters from a surgeon to Dr.
Greenfield have been associated since the prior rating. On
December 9, Dr. MacMillan interviewed and evaluated the
appellant. The doctor stated that the next course of
treatment was a disc decompression and lumbar fusion surgery.
On December 28, the appellant was seen again and reported a
complete resolution of the radiating pain into his right leg.
The appellant underwent a December 2004 VA examination in
association with his original claim. The appellant had an
abnormal gait with limping. The appellant indicated that he
had recently developed neurological complications involving
the right leg, for which he was separately service connected
as discussed below. The appellant does not use a cane,
crutches, or walker. The appellant had forward flexion to 90
degrees, extension to 32 degrees, lateral bending to 32
degrees on the left and right, left rotation to 75 degrees
and right rotation to 68 degrees. The appellant complained
of pain in the extremes of left and right rotation. The
appellant's ranges of motion exceed the 10 percent minimums
easily. See General Ratings Formula, supra.
The appellant underwent chiropractic therapy from January to
March 2005. An August 2005 letter from the chiropractor
describes the appellant's course of treatment during 2005 and
that the appellant's condition had not improved. He states
in the letter that the appellant's primary diagnosis is an
acute subluxation/fixation of the right sacroiliac joint,
complicated by muscle spasms of the paraspinal muscles and
sciatica down the right leg.
A January 2006 medical evaluation was performed by Dr. Poppa
for the appellant's attorneys. In reviewing the appellant's
medical history, Poppa noted the extensive physical therapy
undergone during 2004 and 2005. He noted that further
treatment would include surgery for disc decompression, which
had already been recommended by Dr. MacMillan. The
examination report indicates the level of neurological
impairment, notes a spasm and radiating pain, but does not
include a range of motion test.
The May 2006 VA examination report indicates a full range of
motion. Flexion was to 90 degrees, with extension, bilateral
lateral flexion and bilateral lateral rotation to 30 degrees
each. The appellant had an obvious spasm on examination.
The appellant reported daily flareups and additional
functional loss. On repetition, the appellant's forward
flexion was reduced to 80 degrees. The appellant does not
use a cane, crutches, or walker. He indicated that he had a
back brace which he did not use. There is no notation of
abnormal spinal contour.
On the basis of this record, the RO reduced the appellant's
rating. Since then, additional medical evaluations and
records have been associated with the file. The appellant
had a March 2007 evaluation performed by a Dr. Zarr and a
December 2008 evaluation performed by a Dr. Bash. The
appellant's Social Security Administration records were
associated with the file. These confirm the May 2006 finding
that the disability had continued, if not actually worsened.
As is apparent from the foregoing, the appellant had no
discernible improvement in his level of functioning on the
record. Under the applicable precedent, the RO and the Board
must find that an improvement in the disability occurred.
See Brown, supra. No such improvement occurred. The
appellant retained a full range of motion, with increasing
reports of pain and objective muscle spasm on later physical
examinations. It appears that the later RO review of the
initial rating concluded that the original grant was
excessive; however, the proper remedy in such a case is
revision based on clear and unmistakable error, not a ratings
reduction. See 38 C.F.R. § 3.105. The Board finds that the
criteria for a reduction of the 20 percent rating for a
herniated L5-S1 intervertebral disc were not met.
Restoration of the 20 percent rating, effective November 1,
2006, is warranted. See id.
Turning to the separately service connected for neurological
complications of the right leg, the Board notes that the
record reflects a similarly flawed reduction. Any associated
objective neurologic abnormalities, including, but not
limited to, bowel or bladder impairment, are separately
evaluated under an appropriate Diagnostic Code. 38 C.F.R.
§ 4.71a, General Ratings Formula for Diseases and
Disabilities of the Spine, at Note (1). The appellant
received an initial evaluation of 30 percent, which was
reduced to 20 percent under DC 8621, effective November 1,
2006.
The appellant was rated under DC 8621, for neuritis of the
external popliteal nerve (common peroneal), involving motion
of the foot and toes, analogous to mild incomplete paralysis
of that specific nerve. 38 C.F.R. § 4.124a (2008).
Incomplete paralysis of the external popliteal (common
peroneal) nerve will be rated as 10 percent disabling where
mild, 20 percent disabling where moderate, and as 30 percent
disabling where severe. Complete paralysis of the external
popliteal (common peroneal) nerve, with foot drop and slight
droop of first phalanges of all toes, such that the foot
cannot dorsiflex, extension (dorsal flexion) of proximal
phalanges of toes is lost, abduction of foot is lost,
adduction is weakened, and anesthesia covers entire dorsum of
foot and toes will be rated as 40 percent disabling.
Neuritis and neuralgia of the external popliteal (common
peroneal) nerve will be rated on the same basis. 38 C.F.R.
§§ 4.123, 4.124a, Codes 8521, 8621, 8721.
The appellant was provided a December 2004 VA examination
which outlined his right side S1 radiculopathy. The
appellant was noted to have a range of sensory and reflex
loss in the right lower extremity. The appellant was also
noted to have atrophy of the calf.
In contrast, the May 2006 VA examination shows some
progression. While the appellant's sensory and reflex loss
continued, the appellant was now found to have atrophy of the
calf and thigh. The appellant's later VA treatment records
and the December 2008 Dr. Bash opinion confirm that the
appellant's condition had not improved.
As before, the evidence does not show objective signs of
improvement. At the least, the December 2004 VA examination
report shows atrophy of the calf and the May 2006 VA
examination report shows atrophy of the calf and thigh. The
sensory disturbances and reflex loss appear similar. Later
medical records confirm these findings. The Board concludes
that a reduction was not warranted on this record.
Restoration of the prior rating must be granted.
Accordingly, the Board finds that a the available evidence at
the time of the August 2006 rating decision (which
implemented the proposed reductions) did not support the RO's
conclusions that an improvement in the appellant's spine and
right leg disabilities had occurred. Hence, the restoration
of both ratings is warranted. See Brown, supra.
ORDER
Entitlement to restoration of a 20 percent evaluation for a
herniated L5-S1 intervertebral disc is granted, effective
November 1, 2006.
Entitlement to restoration of a 30 percent evaluation for S1
radiculopathy of the right lower extremity is granted,
effective November 1, 2006.
REMAND
The TDIU claim must be remanded.
The appellant obtained a medical evaluation and opinion from
a Dr. Bash in December 2008. In it, Dr. Bash outlines why he
believes the appellant is unemployable. In particular, the
doctor indicates that the appellant has neurological
complications of both lower extremities, as opposed to just
the right extremity. On this basis, a determination of
unemployability is recommended.
The appellant is not currently service connected for the left
lower extremity. The Board does not have jurisdiction to
assign such a rating in the first instance. As a result, the
December 2008 opinion raises a claim for secondary service
connection for peripheral neuropathy of the left lower
extremity.
Additionally, the December 2008 evaluation describes a much
greater degree of service connected disability in the back
and right lower extremity than has been identified in
previous examinations. The record raises an informal claim
for increased ratings for these disabilities. See 38 C.F.R.
§ 3.157 (2008).
With respect to the appellant's claim for TDIU, the Board
finds this issue to be inextricably intertwined with any
questions as to his entitlement to service connection for
peripheral neuropathy of the left lower extremity and
increased ratings for the low back and right lower extremity
disabilities. See Harris v. Derwinski, 1 Vet. App. 180
(1991). Therefore, the Board cannot fairly proceed in
adjudicating this issue until any outstanding matter with
regard to the appellant's claims for service connection and
increased ratings has been resolved.
Accordingly, the case is REMANDED for the following action:
1. Develop and adjudicate the appellant's raised
claims for service connection and increased ratings.
2. Then, the RO should readjudicate the
TDIU claim on the merits. If the benefits
sought are not granted, the appellant and
his representative should be furnished a
SSOC and afforded a reasonable opportunity
to respond before the record is returned
to the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
