Citation Nr: 21026925 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-15 085 DATE: May 4, 2021 ORDER Reduction of the rating for service-connected sensory deficits of the right lower extremity associated with lumbosacral strain, effective June 1, 2015, was not proper; restoration of the 10 percent rating from June 1, 2015, is granted. FINDINGS OF FACT 1. A June 2015 rating decision reduced the 10 percent schedular disability rating for sensory deficits of the right lower extremity associated with lumbosacral strain to 0 percent, effective June 1, 2015. 2. At the time of the reduction, the 10 percent rating for the Veteran's sensory deficits of the right lower extremity associated with lumbosacral strain had been in effect since December 15, 2008, more than five years. 3. The reduction of the Veteran's rating from 10 to 0 percent did not consider whether the evidence made it reasonably certain that the improvement would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the disability rating for the service-connected sensory deficits of the right lower extremity associated with lumbosacral strain from 10 percent to 0 percent disabling was not proper; therefore, the criteria for restoration of the 10 percent disability rating from June 1, 2015, is warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.124A, Diagnostic Code (DC) 8621 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from October 1988 to September 1992. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO's June 2015 rating decision reduced the Veteran's disability rating for sensory deficits of the right lower extremity associated with lumbosacral strain from 10 percent to 0 percent, effective June 1, 2015. In January 2019, the Board denied a compensable rating for the sensory deficits of the right lower extremity associated with lumbosacral strain, including restoration of the 10 percent rating. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Memorandum Decision, the Court held that the rating reduction was void ab initio on the basis that the Board did not provide an adequate statement of reasons or bases for its decision, and remanded the matter to the Board for reinstatement of the 10 percent rating. Entitlement to restoration of the 10 percent rating for sensory deficits of the right lower extremity associated with lumbosacral strain from June 1, 2015 In a June 2015 rating decision, the RO reduced the 10 percent rating for sensory deficits of the right lower extremity associated with lumbosacral strain from 10 percent to a 0 percent, noncompensable rating, effective June 1, 2015. At the time the reduction became effective on June 1, 2015, the 10 percent rating for sensory deficits of the right lower extremity had been continuously in effect for more than five years; therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) are applicable. 38 C.F.R. § 3.344(c). In a January 2019 decision, the Board denied restoration of the 10 percent rating. In a September 2020 Memorandum Decision, the Court held that the Board erred in the January 2019 decision denying restoration of the 10 percent rating. The Court indicated that the Board erred by failing to provide an adequate statement of reasons or bases for reducing the disability rating, specifically, it did not consider "whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life." Memorandum Decision, at 6. The Court recently held that such an error warrants reinstatement, i.e., restoration, of the rating in effect prior to the reduction. Stern v. McDonough, __ Vet. App. __, No. 18-4225 (Apr. 20, 2021). Thus, the reduction of the 10 percent rating to 0 percent, effective from June 1, 2015, was not proper and restoration of the 10 percent rating is warranted from that date. Although the issue was characterized by the Board and Court in the memorandum as including "entitlement to a compensable rating," which could be construed to include a rating higher than 10 percent, the Veteran indicated in his notice of disagreement that he sought a 10 percent rating and there is no other indication that the issue of a rating in excess of 10 percent was on appeal. Consequently, the Board will not address any issue beyond restoration of the 10 percent rating. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.