Citation Nr: 0000750 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 96 - 32 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Entitlement to restoration of a 10 percent rating for residuals of lumbosacral strain. Entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from July 1980 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of June 1995 from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. That decision reduced the evaluation for the veteran's service-connected residuals of lumbosacral strain from 10 percent to a noncompensable evaluation, and denied entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). FINDINGS OF FACT 1. The rating decision of June 1995 reducing the evaluation for the veteran's service-connected residuals of lumbosacral strain from 10 percent to a noncompensable rating, effective in October 1995, was in complinace with applicable law and regulations and was proper. 2. The veteran's two noncompensable service-connected disabilities are not of such character as to clearly interfere with normal employability. CONCLUSIONS OF LAW 1. The rating decision of June 1995 reducing the evaluation for the veteran's service-connected residuals of lumbosacral strain from 10 percent to a noncompensable rating, effective in October 1995, was accomplished in compliance with applicable law and regulations, and restoration of disability compensation benefits is not warranted. 38 U.S.C.A. § 5112(b) (West 1991); 38 C.F.R. §§ 3.105(e)(i), 3.344(a) and (c), 3.501(g), 3.655(a) and (b) (1999). 2. Entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999) is not established. 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the appellant's claim is plausible and is thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). We further find that the facts relevant to the issue on appeal have been properly developed and that the statutory obligation of VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991). I. Evidentiary and Procedural History Following receipt of the veteran's original claim for VA disability compensation benefits in November 1992, a VA compensation and pension examination was conducted in December 1992. The report of VA examination in December 1992 showed that the veteran complained of pain low in the lumbar spine area, near the L5-S1 level, with some radiation to either side. Examination revealed that the veteran had a normal posture, carriage and gait; that his spine was straight and without scoliosis; that no back muscles were in spasm; that straight leg raising was negative, bilaterally, at 85 degrees; and that limitation of back motion was present in all planes. Neurological examination revealed no sensory or reflex deficits. X-rays showed a moderate dextroscoliosis and spina bifida with disc narrowing at L5-S1. The diagnoses were multiple strains, lower back; X-ray findings of spina bifida with disc narrowing at L5-S1; back pain, rule out herniated disc; and laceration of the right fifth toe, healed, no sequelae. Pursuant to that examination, a rating decision of August 1993 granted service connection for residuals of lumbosacral strain, evaluated as 10 percent disabling, and for residuals of laceration of the right fifth toe, evaluated as noncompensably disabling, and a routine future medical examination was scheduled in December 1994. That decision became final after one year. A routine future examination, conducted in February 1995, cited the veteran's statements that he was seen and treated on several occasions in service after experiencing low back pain and leg fatigue while working in aircraft maintenance, and that he had no history of trauma, no bowel or bladder complaints, and no hospitalizations for his back. He complained of low back pain several times a week, depending on his activities, without radiation to the lower extremities. Examination revealed that the veteran sat comfortably, and had a normal gait; that he had a normal thoracic scoliosis with a slight lumbar scoliosis; that the musculature of his back was symmetrical and equal, with no palpable spasm; and that straight leg raising was negative, bilaterally, at 84 degrees. Forward flexion was accomplished to 97 degrees; backward extension to 36 degrees; left lateral bending to 38 degrees and right lateral bending to 40 degrees; and left rotation to 36 degrees and right rotation to 34 degrees, with no pain elicited on range of motion or positional changes. Examination of the lower extremities revealed that the legs were equal in length; that circumferential measurement of the thighs was 21 1/4 on the right and 21 3/4 on the left, while the calves measured 15 1/4 on the right and 15 3/4 on the left, without evidence of cyanosis, clubbing, or edema. Neurological examination revealed equal muscle strength, mass, sensation, and reflexes, bilaterally. The diagnoses included chronic nonradiating low back pain, probably secondary to chronic mechanical strain, aggravated by probable moderate dextroscoliosis, spina bifida occulta, and disc space narrowing at L5-S1. There were no findings of a laceration scar of the right fifth toe. In a subsequent rating decision, issued in March 1995, the RO proposed to reduce the 10 percent evaluation for the veteran's service-connected residuals of lumbosacral strain from 10 percent to a noncompensable rating. The veteran was notified by letter of March 12, 1995 of the proposal to reduce the evaluation for his service-connected residuals of lumbosacral strain from 10 percent to a noncompensable rating; of his right to submit medical or other evidence to show why the proposed reduction should not be implemented; and to request a personal hearing to present evidence or argument from himself or witnesses. He was further informed that if he requested a personal hearing, the proposed reduction would not be carried out until the hearing was held and the hearing testimony reviewed. The veteran did not respond to the RO letter of March 12, 1995, did not submit additional medical or other evidence to show why the proposed reduction should not be implemented, and did not request a personal hearing. A rating action of June 1995 reduced the evaluation for the veteran's service- connected residuals of lumbosacral strain from 10 percent to a noncompensable rating, effective October 1, 1995, and further denied entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). The veteran was notified by RO letter of July 5, 1995 of the reduction in his disability rating and compensation benefits, and of his right to initiate an appeal of that action. The veteran initiated an appeal, seeking restoration of the 10 percent evaluation for his service-connected residuals of lumbosacral strain, as well as entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). A VA orthopedic examination was scheduled in May 1997 to evaluate the veteran's service-connected residuals of lumbosacral strain. The veteran failed to report for the scheduled examination, without explanation. The veteran's case was transferred to the Board in November 1997 for appellate review. In March 1998, the Board remanded the veteran's claims to the RO for another VA orthopedic examination of his service- connected residuals of lumbosacral strain and residuals of laceration of the right fifth toe, including matters of weakened movement, excess fatigability, incoordination, and loss of function due to pain on use or during flare-ups, as provided by 38 C.F.R. Part 4, §§ 4.40, 4.45, and 4.59, with respect to the service-connected lumbosacral strain. The examining physician was to further provide an opinion, with complete rationale, as to the degree of industrial impairment resulting from the veteran's service-connected lumbosacral strain and residuals of a laceration of the right fifth toe. In addition, the RO was asked to contact the veteran and request that he provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his service-connected residuals of lumbosacral strain and residuals of a laceration of the right fifth toe. By RO letter of May 1998, the veteran was asked to provide specific names, addresses, and approximate dates of treatment for all private or VA health care providers from whom he has received treatment for his residuals of lumbosacral strain and residuals of a laceration of the right fifth toe. He was informed that if the evidence requested was not received within 60 days, his appeal would be considered on the basis of the evidence of record, or returned to the Board without further consideration. The veteran failed to respond to the RO letter of May 1998, and further failed to provide the requested information. In addition, he failed to report for a scheduled VA orthopedic examination in November 1998, without explanation, preventing the RO from obtaining the necessary medical evidence and opinion called for in the Board's remand order of March 1998. In a Supplemental Statement of the Case issued in June 1999, the RO continued the denial of restoration of a 10 percent evaluation for the veteran's service-connected residuals of lumbosacral strain and the denial of his claim of entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999). The case was then returned to the Board for further appellate review based upon the evidence of record. II. Analysis Where the reduction in evaluation of a service-connected disability or employability status 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 will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 U.S.C.A. § 5112(b)(6) (West 1991); 38 C.F.R. § 3.105(e) (1999). In the advance written notice concerning proposed actions under paragraphs (d) through (h) of this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 U.S.C.A. § 5112(b)(6) (West 1991); 38 C.F.R. § 3.105(i)(1) (1999). Following the predetermination procedures specified in this paragraph and in paragraph (d), (e), (f), (g) or (h) of this section, whichever is applicable, final action will be taken. If a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or beneficiary, death of an immediate family member, etc. 38 U.S.C.A. § 5112 (West 1991); 38 C.F.R. § 3.105(i)(2) (1999). Governing VA law and regulations provide, in pertinent part, as follows: Where an award is reduced, the reduced rate will be payable the day following the date of discontinuance of the greater benefit. 38 U.S.C.A. § 5112(b) (West 1991); 38 C.F.R. § 3.501 (1999). Such regulations further provide that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. . . . 38 C.F.R. § 3.344(a) (1999). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, . . . , and following the appropriate code there will be added the reference "Rating continued pending reexamination --- months from this date, § 3.344." The rating agency will determine on the basis of the facts in each individual case whether 18, 24 or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b) (1999). However, the provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1999). The Board notes that the veteran's 10 percent rating for residuals of lumbosacral strain became effective in June 1992, and that such rating had not been in effect for a period of five years or more prior to the reduction effective in October 1995. Consequently, the provisions of 38 C.F.R. § 3.344(a) and (b) are inapplicable in this case. The evidence shows that the RO has fully complied with the requirements of U.S.C.A. § 5112(b)(6) (West 1991) and 38 C.F.R. § 3.105(e) (1999) as such law and regulations apply to the instant appeal. The veteran has been given the requisite pre-determination notice in the form of a rating proposing the reduction or discontinuance and setting forth all material facts and reasons; he has been notified at his address of record of the contemplated action and furnished detailed reasons therefor; he has been given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level; and he has failed to submit additional evidence or to timely request a predetermination hearing within that period. Accordingly, his award was reduced and discontinued effective October 1, 1995, the day following the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. 38 U.S.C.A. § 5112(b)(6) (West 1991); 38 C.F.R. § 3.105(e) (1999). In addition, where a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or beneficiary, death of an immediate family member, etc. 38 U.S.C.A. § 5112 (West 1991); 38 C.F.R. § 3.105(i)(2) (1999). As previously noted, the veteran failed to respond to the RO letter of May 1998, or to otherwise provide the requested information. In addition, he failed to report for scheduled VA orthopedic examination in November 1998, without explanation, preventing the RO from obtaining the medical evidence and opinion called for in the Board's remand order of March 1998. Governing regulations provide that if a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. 38 U.S.C.A. § 5112 (West 1991); 38 C.F.R. § 3.105(i)(2) (1999). In addition, where entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, the claim shall be rated based upon the evidence of record. 38 U.S.C.A. § 501 (1991); 38 C.F.R. § 3.655(a) and (b) (1999). To that point, the Board notes that the veteran did not have a running award, his benefits having been discontinued effective October 1, 1995. The medical evidence in this case, which has been set out in its entirety in the Evidence section (Part I, above), fails to disclose a level of occupational impairment, or loss of function due to pain or pain on motion which would warrant restoration of the prior 10 percent evaluation for the veteran's service-connected residuals of lumbosacral strain. In particular, there was no evidence of characteristic pain on motion, as required for a 10 percent evaluation under 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5295(1999). Efforts to obtain further evidence were frustrated by the veteran's failure to submit additional evidence as requested by the RO, and his failure to report for scheduled VA examination in May 1997 and in November 1998, without adequate cause shown. The Board finds that, based upon the evidence currently of record, including the service medical records and the VA examinations conducted in December 1992 and in February 1995, the reduction in the assigned evaluation for the veteran's service-connected residuals of lumbosacral strain from 10 percent to a noncompensable evaluation was proper, and that restoration of the prior 10 percent evaluation for that disability is not warranted. The Board further notes that a VA examination conducted in December 1992 disclosed that the veteran's service-connected laceration of the right fifth toe was healed, and that there were no sequelae to that injury. The VA examination conducted in February 1995 disclosed no findings of any residuals of that injury. Based upon the current record in this appeal, the Board further finds that while the veteran has two separate, permanent, noncompensable service-connected disabilities, the evidence of record is insufficient to establish that those disabilities are of such character as to clearly interfere with normal employability, as contemplated under the provisions of 38 C.F.R. § 3.324 (1999). In reaching its decisions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Restoration of a 10 percent schedular evaluation for residuals of lumbosacral strain is denied. A 10 percent evaluation based on multiple noncompensable service-connected disabilities under the provisions of 38 C.F.R. § 3.324 (1999) is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals