Citation Nr: 1322582	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  09-46 877	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUE

Entitlement to an increased rating for degenerative disc disease (DDD) of the lumbar spine, to include whether a February 2009 decision that reduced the disability rating from 100 percent to 40 percent was proper.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel



INTRODUCTION

The Veteran had active service from April 1970 to January 1989.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California that reduced the Veteran's 100 percent schedular rating for DDD of the lumbar spine to 40 percent, effective May 1, 2009.

The Board notes that although the Veteran requested a Travel Board hearing in his November 2009 substantive appeal (via a VA form 9); in December 2009 written correspondence he withdrew his request for a hearing.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required on his part.


REMAND

As detailed above, the February 2009 rating decision reduced the rating for the Veteran's service-connected DDD of the lumbar spine from 100 percent to 40 percent effective May 1, 2009, after proposing the reduction in a November 2008 rating decision.  The 100 percent rating had been in effect since March 8, 2004, a period of more than five years.  The tenets of 38 C.F.R. § 3.344(a) (stabilization of disability evaluations) and (b) are thereby applicable.  The Veteran filed a notice of disagreement in March 2009 indicating that he wished to appeal the reduction. 

Because the reduction involves termination of a total rating, guidance also set forth at 38 C.F.R. § 3.343 must be followed.  According to § 3.343(a), "Total disability ratings, when warranted by the severity of the condition, and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition."   However, in the statement of the case (SOC) issued to the Veteran in October 2009, the RO failed to include reference to the relevant regulations pertaining to rating reductions, 38 C.F.R. §§ 3.105(e), 3.343, and 3.344 (2012).  Rather the issue was characterized as entitlement to an increased rating, and those regulations were included in the document. 

Further, when scrutinizing the rating decision, the RO merely discussed the rating criteria in relation to objective findings noted in a prior rating decision.  There was no discussion as to whether the evidentiary requirement of 3.343 or 3.344 had been met.  Therefore, the Board concludes that a remand is necessary to cure the procedural defect. 

Accordingly, the case is REMANDED for the following action:

Readjudicate the Veteran's claim that the rating reduction for his service-connected DDD of the lumbar spine from 100 percent to 40 percent was improper with full consideration of the regulations pertaining to rating reductions, including 38 C.F.R. §§ 3.105(e), 3.343, 3.344 (2012).  In addition, as the matter also includes entitlement to an increased rating, which was adjudicated in the October 2009 SOC, such issue should also be considered in the readjudication.  If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case that includes reference to the regulations denoted above before returning the case to the Board for additional appellate consideration.

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. 2012).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).