Citation Nr: 18153216
Decision Date: 11/27/18	Archive Date: 11/27/18

DOCKET NO. 16-29 746
DATE:	November 27, 2018
ORDER
The reduction of rating for a neck condition, formerly claimed as cervical strain and currently diagnosed as cervical disc disease, from 20 percent disabling to 0 percent disabling effective November 18, 2014, was improper.  The 20 percent rating is restored, effective November 18, 2014, and to that extent the claim is granted.
FINDING OF FACT
The evidence of record at the time of the November 2014 reduction action does not establish improvement in the Veteran’s ability to function under the ordinary conditions of life and work due to the service-connected neck condition.
CONCLUSION OF LAW
The reduction of the rating for a service-connected neck condition from 20 percent to 0 percent effective as of November 18, 2014, was improper and the 20 percent rating is restored, effective as of November 18, 2014.  38 C.F.R. § 3.344.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from March 2009 to October 2012.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  
1. Neck Condition
The Veteran asserts that the Agency of Original Jurisdiction erroneously reduced the rating for the service connected neck condition from 20 percent to 0 percent as the service connected disability had not improved.  
The report of a July 2014 cervical spine examination conducted for VA conveys that the Veteran originally injured her neck in August 2009.  The examiner stated the Veteran had a separate incurrence of neck pain in October 2013, within one year of separation from service.
On examination of the cervical spine, the Veteran exhibited a range of motion of forward flexion to 35 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 35 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 35 degrees.  The Veteran was diagnosed with “cervical disc disease with neuroforaminal stenosis.”  The examiner commented that the “final diagnosis represents a new and separate condition.”  
In November 2014, the Agency of Original Jurisdiction reduced the rating for cervical strain from 20 percent to 0 percent, effective November 18, 2014.  At the time of the reduction action, the 20 percent rating had been in effect for less than five years.  The RO stated that the Veteran’s cervical strain had resolved. 
The evidence of record at the time of the November 2014 reduction action, including the report of the July 2014 cervical spine examination, neither shows that a sustained improvement of the neck condition had occurred, nor reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.  The Agency of Original Jurisdiction did not identify any sustained improvement of the neck condition.  The Agency of Original Jurisdiction noted only that the Veteran had a new diagnosis of a degenerative condition that began within one year of separation from active service.  The failure to make a finding of improvement is a defect requiring restoration.  Brown v. Brown, 5 Vet. App. 413 (1993).  
In the absence of any specific and objective findings of material improvement of the cervical spine disability, the Board concludes that the reduction of the rating for cervical strain from 20 percent to 0 percent effective as of November 18, 2014, was improper.  38 C.F.R. § 3.344(c).  As the weight of the evidence does not show that there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work, the prior rating will be restored.

 
H.M. WALKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Uller, Associate Counsel