Citation Nr: 1742271 Decision Date: 09/26/17 Archive Date: 10/04/17 DOCKET NO. 13-12 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether the reduction in rating from 20 percent to 10 percent for service-connected degenerative disc disease (DDD) of the thoracolumbar spine was proper. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active service from March 1985 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which reduced a rating of 20 percent to 10 percent for service-connected DDD of the thoracolumbar spine, effective December 1, 2011. In September 2011, the Veteran filed a Notice of Disagreement (NOD). The RO furnished the Veteran a Statement of the Case (SOC) in March 2013. The Veteran filed a Substantive Appeal (VA Form 9) in April 2013 and requested a Board hearing. In November 2015, the Veteran withdrew the request for the Board hearing in writing. 38 C.F.R. § 20.704(e) (2016). This appeal was processed using the Veteran Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claim regarding whether the reduction in rating from 20 percent to 10 percent for service-connected DDD of the thoracolumbar spine is proper. The RO increased the disability rating for the Veteran's service connected DDD of the thoracolumbar spine from 10 percent to 20 percent in a June 2009 rating decision, effective January 30, 2009. By a September 2011 rating decision, the RO reduced the disability rating for the Veteran's DDD of the thoracolumbar spine from 20 percent to 10 percent, effective December 1, 2011. In his September 2011 NOD, the Veteran argued that his most recent medical records show that his service-connected DDD of the thoracolumbar spine has not improved. In the March 2013 SOC, the RO continued the 10 percent rating for DDD of the thoracolumbar spine. In the September 2013 Supplemental Statement of the Case (SSOC), the RO again continued the 10 percent rating for DDD of the thoracolumbar spine. The Board finds that the RO mischaracterized the issue in both the March 2013 SOC and September 2013 SSOC. Instead of characterizing the issue as whether or not the reduction in rating from 20 percent to 10 percent for service-connected DDD of the thoracolumbar spine is proper, the RO represented the issue as an increased rating evaluation. In doing so, the RO incorrectly shifted the burden of proof upon the Veteran. In any rating reduction case it must be determined that an improvement in a disability has actually occurred, and also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413, 420-421 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 C.F.R. §§ 4.1, 4.2, 4.10. In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120, 123-124 (2002). The burden of proof is on VA. Brown v. Brown, 5 Vet. App. 413, 421 (1993). This can be contrasted with increased rating claims, where the burden of proof is upon the Veteran to show that the condition has worsened. Due to the fact that the previous March 2013 SOC and September 2013 SSOC mischaracterized the issue as an increased rating claim and did not make clear that this is a rating reduction case, the burden of proof was incorrectly placed upon the Veteran. As such, the issuance of a new SSOC is warranted here. Additionally, pursuant to 38 C.F.R. § 19.29(b) the SOC must contain a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 C.F.R. § 19.29(b) (2016). In the present case, the March 2013 SOC and the September 2013 SSOC did not contain all of the applicable laws and regulations. Specifically, they did not include the laws and regulations pertaining to rating reductions. Accordingly, the Board finds that the March 2013 SOC and September 2013 SSOC were inadequate. As the Veteran has not been provided an adequate SOC or SSOC, a remand to ensure the Veteran is provided an adequate SSOC is necessary. See 38 C.F.R. § 19.31(b) (2016) (stating that an SSOC will be furnished when there is a material defect or inadequacy in the SOC or a prior SSOC). The Veteran has submitted private treatment records after the most recent September 2013 SSOC, and the VA provided the Veteran with an examination in January 2015 regarding his service-connected DDD of the thoracolumbar spine. These documents were associated with the Veteran's file without a waiver of RO consideration. No subsequent SSOC was issued. Subsection (e) of 38 U.S.C.A. § 7105 (West 2014) provides, "If either at the time or after the AOJ receives a substantive appeal, the claimant or the claimant's representative, if any, submits evidence to either the AOJ or the Board of Veterans' Appeals for consideration in connection with the issue or issues with which the disagreement had been expressed, such evidence shall be subject to initial review by the Board unless the claimant or claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence." This provision applies to substantive appeals (VA Form 9s) submitted after February 2, 2013. In this case, although the Veteran's VA Form 9 was submitted subsequent to that date, the VA has not interpreted the provision to include evidence that the VA itself has developed. In this case, as the VA examination in January 2015 was provided after the September 2013 SSOC, the Veteran is entitled to initial review by the AOJ. See 28 C.F.R. § 19.31(b)(1) (2016). Therefore, the Board finds that on remand, the AOJ must issue an SSOC after review of any evidence associated with the Veteran's claims folder since the September 2013 SSOC. Accordingly, the case is REMANDED for the following action: 1. Offer the Veteran the opportunity to submit additional evidence relevant to his service-connected DDD of the thoracolumbar spine. Obtain all VA and non-VA records sufficiently identified by the Veteran and that have not been obtained already. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding relevant private (non-VA) records. If the Veteran responds, assist him in obtaining additional evidence identified, following the current procedures set forth in 3.159. All records/responses should be associated with the claims file. If any records sought are not obtained, explain the efforts taken to obtain them and described further action to be taken. 2. Review the evidence received into the record subsequent to the most recent September 2013 Supplemental Statement of the Case, to specifically include the private treatment records submitted by the Veteran, and the July 2015 VA examination report. 3. Re-adjudicate the issue of whether the reduction in rating from 20 percent to 10 percent for the service-connected DDD of the thoracolumbar spine was proper, in light of all pertinent evidence and legal authority including consideration of 38 C.F.R. §§ 4.13, 3.344 (c). If the determination remains adverse to the Veteran, furnish the Veteran and his representative a Supplemental Statement of the Case that properly characterizes the issue regarding the propriety of the reduction from 20 percent to 10 percent for the service-connected DDD of the thoracolumbar spine, and fully sets forth the evidence and controlling law and regulations pertinent to the appealed issue. The Veteran and his representative should be allowed an appropriate period of time for response. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 claim must be afforded expeditious treatment. The law requires that all claims 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 2014). _________________________________________________ DEBORAH. W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).