Citation Nr: 20003908 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 17-35 537 DATE: January 16, 2020 ORDER The reduction from a 20 percent rating to a 10 percent rating for a degenerative joint disease of the lumbar spine was not proper; a 20 percent disability rating is restored, effective September 1, 2017. REMANDED Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. FINDING OF FACT The Veteran’s lumbar spine disability was awarded a 20 percent rating in a June 1992 rating decision, which was in effect for more than 20 years; there is no finding of fraud with that initial rating. CONCLUSION OF LAW The 20 percent rating awarded in June 1992 is a protected rating, and therefore restoration of a 20 percent rating for degenerative joint disease of the lumbar spine from September 1, 2017, is warranted; to this limited extent, the appeal is granted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.951 (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1963 to February 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that during the pendency of his appeal for a higher rating for a low back disability, the RO issued a rating decision decreasing the Veteran’s rating for degenerative joint disease of the lumbar spine from 20 percent disabling to 10 percent disabling, effective September 1, 2017. Although not explicitly appealed by the Veteran, because the increased rating claim for that disability remained on appeal, the Board has also inferred as part and parcel of that increased rating claim, a claim regarding whether the reduction in rating for that disability was proper. In short, the propriety of that rating reduction, and the question of an increased rating for the lumbar spine disability are inextricably intertwined issues, and therefore the rating reduction must be addressed. In a September 16, 2019 correspondence, the Veteran withdrew his request for a hearing before a Veterans Law Judge. 1. Whether the rating reduction from 20 percent to 10 percent for a lumbar disability was proper. When a disability rating has been in effect for 20 or more years, that rating is protected. “A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.” 38 C.F.R. § 3.951 (b). Service connection for the Veteran’s lumbar spine disability was originally granted in a June 1992 rating decision and a 20 percent rating was assigned effective February 13, 1991. In a December 2017 rating decision, the RO granted separate ratings for radiculopathy of right lower extremity under the updated General Rating Formula for Diseases and Injuries of the Spine and reduced the rating for the lumbar spine disability to 10 percent. The 20 percent rating for orthopedic manifestations has been in effect since February 13, 1991, more than 20 years. Further, the December 2017 did not find any evidence of fraud in the initial rating. Therefore, the 20 percent rating for the lower back is protected and cannot be reduced. Even presuming that the rating was not protected (which is it), the Board still finds that the reduction was not proper. Federal guidelines include specific procedural requirements which must be carried out prior to instituting a rating reduction. Specifically, the RO must issue a rating decision proposing the reduction and advise the Veteran that he has 60 days to present additional evidence to show that such a reduction is not warranted (and also notify him of his right to a predetermination hearing). 38 U.S.C. § 5112; 38 C.F.R. §§ 3.105€, 3.343, 3.344. In this matter, no rating decision or other notice was given to the Veteran prior to the reduction in rating for his lumbar spine disability. As such, the rating reduction is not proper. Restoration of a 20 percent rating for the lumbar spine disability from September 1, 2017, is warranted. To this limited extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Inasmuch as the Board regrets any further delay in the adjudication of these appeals, a remand is necessary. The most recent supplemental statement of the case with regard to the issues on appeal was issued in November 2017. In October 2019, the Veteran underwent new VA examinations which directly addressed the severity of his lumbar spine and left knee disabilities. Although present law states that new evidence submitted by the Veteran following the most recent consideration by the RO need not be remanded for such review absent a request by the Veteran for RO consideration, see Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, § 501, 126 Stat. 1165, 1190 (Camp Lejeune Act); 38 C.F.R. § 20.1304, the Board may not review evidence created by VA in the first instance without prior RO consideration or a waiver of review by the Veteran. Therefore, because VA has created new evidence since the most recent reconsideration by the RO, a remand is necessary to ensure proper consideration of all evidence prior to final review by the Board. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claim. 2. Readjudicate the issues on appeal in light of all evidence of record to include the October 2019 VA spine and knee examinations. M. Pryce Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.