Citation Nr: 1306356 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-46 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether a 50 percent schedular rating for degenerative disc disease, status post discectomy was properly reduced to 40 percent, effective from January 1, 2010. 2. Entitlement to an increased rating for degenerative disc disease, status post discectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his father ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from April 1995 to August 1998. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran's disability evaluation for degenerative disc disease, status post discectomy, from 50 percent to 40 percent, effective from January 1, 2010. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is associated with the claims file. Subsequent to the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The decision below restores a 50 percent rating for the Veteran's back disability. The issue of entitlement to an increased rating in excess of 50 percent is addressed in the remand that follows the decision below. FINDINGS OF FACT 1. The Veteran was granted service connection for degenerative disc disease, status post discectomy in a May 1999 rating decision and assigned a 40 percent evaluation, effective August 8, 1998. That evaluation was later increased to 50 percent, effective from March 11, 2004. 2. The reduction in the rating for degenerative disc disease was done without consideration of regulations applicable to reductions in ratings that have been in effect for more than 5 years. CONCLUSION OF LAW The reduction of the evaluation for degenerative disc disease, status post discectomy, from 50 to 40 percent is void. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.344 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board restores the Veteran's 50 percent evaluation for service connected degenerative disc disease; which represents a grant of that issue. As such, no further notice or assistance is required to assist the Veteran in substantiating this claim. The Veteran was originally service connected for degenerative disc disease, status post discectomy (back disability) in a May 1999 rating decision. This rating decision assigned a 40 percent evaluation, effective August 8, 1998. The Veteran did not appeal that decision and no new and material evidence was received within one year of its issuance. Thus, that rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.1103. In a July 2004 rating decision, that evaluation was increased to 50 percent, effective from March 11, 2004. The Veteran did not appeal that decision and no new and material evidence was received within one year of its issuance. Thus, that rating decision likewise became final. See 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran sought an increased evaluation due to herniated and bulging discs in September 2006. In a January 2007 rating decision, the RO noted that the Veteran's current level of disability, as shown in the October 2006 VA examination, most closely approximated the criteria for a 20 percent evaluation, but there was no evidence of sustained improvement, so the 50 percent evaluation was continued. Again, the Veteran did not appeal that decision and no new and material evidence was received within one year of its issuance. See 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran was scheduled for a routine VA spine examination on February 18, 2009. He failed to report to that examination and the RO issued a March 2009 rating decision decreasing his disability evaluation to 0 percent, effective June 1, 2009. In March 2009, the Veteran indicated that he had missed his examination because he did not receive his mail in a timely fashion because of his foreign travel for work. He requested a new examination and provided an updated address. In a July 2009 rating decision, the March 2009 rating decision was set aside and the RO proposed a reduction in the Veteran's disability evaluation from 50 percent to 40 percent. The reasons for this reduction (that the current level of disability was no longer tantamount to favorable ankylosis) was explained in that rating decision. The Veteran was provided notice of the proposed reduction in a July 2009 letter that was mailed to the Veteran's address of record. See 38 C.F.R. § 3.105(e)(setting forth the notice requirements for reduction in the evaluation of a service-connected disability). The Veteran did not request a hearing or submit additional evidence with 60 days of that letter. Because no hearing was held, the final determination was made based on the evidence of record. In an October 2009 rating decision, the RO reduced the Veteran's disability evaluation from 50 percent to 40 percent, effective January 1, 2010. The rating at issue in this case was in effect for more than five years at the time of the reduction in October 2009. Where a rating has been in effect for five years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. Ratings for disease 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 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). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). In Kitchens, the Court stated "[i]n order for the VA to reduce certain service-connected disability ratings, the requirements of 38 C.F.R. § 3.344(a) and (b) must be satisfied." 7 Vet. App. at 324. This regulation requires that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). Failure to consider and apply the applicable provisions of 38 C.F.R. § 3.344, renders a rating decision void ab initio because the error is not in accordance with the law. See Greyzck v. West, 12 Vet. App. 288, 292 (1999); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The October 2009 rating decision and the October 2010 Statement of the Case (SOC) relied on the present level of disability as shown in the April 2009 examination to determine that the Veteran's disability met the requirements for a 40 percent evaluation and not the criteria for a 50 percent evaluation. There is no showing that the Veteran's symptoms materially improved since the May 2004 VA examination that was relied upon in the July 2004 rating decision. The RO does not refer to either the May 2004 or the October 2006 examinations. The RO failed to make a specific determination that there was an improvement in the Veteran's ability to function under the ordinary conditions of work and life. 38 C.F.R. §§ 4.10, 4.13. The RO's failure to make such a determination and specifically consider the provisions of 38 C.F.R. § 3.344 makes the reduction improper. The rating decision and statement of the case pertaining to the rating reduction reflect no consideration of the provisions of 38 C.F.R. § 3.344(a)-(b). Because the rating reduction was done without consideration of applicable regulations, the reduction is void ab initio. Accordingly, the reduction was not proper, and the 50 percent evaluation for degenerative disc disease, status post discectomy, is restored. ORDER Reduction of a 50 percent rating for service-connected degenerative disc disease, status post discectomy was improper; restoration of a 50 percent rating is granted. REMAND The Veteran has argued that his back disability has worsened. Specifically, he states that his back disability is associated with neurologic symptoms including radiculopathy and urinary incontinence. As such, a new examination is necessary to understand the current level of impairment and to identify any neurologic symptoms of the Veteran's degenerative disc disease. The record indicates that the Veteran is currently unemployed due in part to his service-connected degenerative disc disease. See Hearing Transcript. As such, this examiner is also asked to comment on the Veteran's employability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his degenerative disc disease, including any associated neurologic symptoms. The claims folder should be made available to the examiner and reviewed in conjunction with the examination. The examiner should specifically address: a. The current severity the Veteran's back disability. Range of motion should be noted, and all functional losses due to pain, incoordination, fatigue, weakness, flare-ups, etc. should be equated to decrease in motion (beyond what is shown clinically). Episodes requiring physician-prescribed bed rest should be described in detail-duration and frequency. b. The presence of any neurologic symptoms; their association, if any, with his back disability; and the current severity of these symptoms. Each nerve affected or seemingly affected should be described as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. c. The extent to which the Veteran's back disability and any associated neurologic symptoms affect his ability to secure and follow a substantially gainful occupation. Any opinion should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 2. Thereafter, the originating agency should readjudicate the claim of entitlement to an evaluation in excess of 50 percent for a degenerative disc disease in light of the additional evidence obtained. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. An appropriate period of time should then be allowed for a response 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 the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs