Citation Nr: A21008740 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 210322-145751 DATE: May 4, 2021 ORDER The Veteran's October 2000 notice of disagreement (NOD) was neither timely nor valid as to a December 2000 rating decision that reduced the evaluation for low back strain with degenerative changes and limitation of motion from 60 to 20 percent. The Board finds clear and unmistakable error (CUE) in the December 2000 rating decision that reduced the Veteran's evaluation for low back strain with degenerative changes and limitation of motion from 60 percent to 20 percent from March 1, 2001; the December 2000 rating decision is revised, resulting in restoration of the 60 percent disability rating under then-existing diagnostic code 5293 from March 1, 2001. FINDINGS OF FACT 1. A Department of Veterans Affairs (VA) Regional Office (RO) proposed to reduce the Veteran's rating for a low back condition from 60 percent to 20 percent in an August 2000 proposed rating. The Veteran was notified of this proposed rating action in a September 2000 notification letter. 2. In October 2000, the Veteran submitted a VA Form 21-4138 meant to serve as an NOD with respect to the proposed rating reduction. At the time he submitted the NOD in October 2000, no rating decision had been issued finalizing the proposed decrease in the rating for his low back condition. 3. The RO issued a December 2000 rating decision reducing the rating for his low back condition from 60 percent to 20 percent from March 1, 2001. The Veteran was notified of this decision in a December 2000 notification letter. The Veteran did not submit a timely NOD or new and material evidence within one year of being notified of the December 2000 rating decision. Accordingly, the December 2000 rating decision became final. 4. Although the correct facts, as they were known at the time, were before the RO in December 2000, the statutory or regulatory provisions then extant were not correctly applied, and the failure to correctly apply those laws and regulations manifestly changed the outcome of the December 2000 rating decision. CONCLUSIONS OF LAW 1. The October 2000 NOD was neither timely nor valid with respect to the December 2000 rating decision reducing the Veteran's disability rating for low back strain with degenerative changes and limitation of motion. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.201, 20.302, 3.105 2. The criteria for entitlement to revision of the December 2000 rating decision reducing the Veteran's evaluation for low back strain with degenerative changes and limitation of motion from 60 percent to 20 percent from March 1, 2001, based on CUE have been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 38 C.F.R. § 3.344 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1954 to October 1957. The decisions on appeal were issued in April 2020; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In his March 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the RO decisions on appeal. 38 C.F.R. § 20.301. This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Timeliness and Validity of October 2000 NOD By way of procedural background, the Veteran was awarded service connection for low back strain with degenerative changes and limitation of motion, which was rated at 60 percent disabling under then-extant diagnostic code 5293 from January 24, 1997. Subsequently, from November 11, 1999, to December 31, 1999, he was awarded a temporary total disability rating under 38 C.F.R. § 4.30 based on convalescence from back surgery. Thereafter, his pre-hospitalization 60 percent rating was restored from January 1, 2000. In July 2000, the RO notified the Veteran that it had arranged for him to undergo a VA examination at the Denver VA Medical Center. Following his August 2000 VA examination, the RO issued a proposed rating in August 2000. He and his representative were informed of the proposed reduction in a September 2000 notification letter, which stated that he had 30 days to request a personal hearing and 60 days to submit medical or other evidence to show that the reduction should not be made. The letter also indicated that the RO would decide whether to reduce the rating after the 60 days had passed. The August 2000 proposed rating was attached to the letter. In October 2000, the Veteran submitted additional medical evidence from M.W., a chiropractor, and a low back pain disability benefits questionnaire (DBQ). He also submitted a VA Form 21-4138 with the words, "NOTICE OF DISAGREEMENT IN RE: VA LETTER DATED SEPTEMBER 19, 2000" at the top of the form. The Veteran indicated that he disagreed with the findings from the August 2000 VA examination that were referenced in the August 2000 proposed rating, and that he had submitted a letter from his chiropractor and a DBQ in response. A date stamp indicates that the Denver RO received the form in October 2000. VA did not respond to the Veteran's statement. However, a handwritten note on the form dated December 1, 2000, states, "Not NOD ONLY PROPOSED ACTION." This note was presumably made by RO personnel. The same day, the RO issued a rating decision that formally reduced his rating from 60 percent to 20 percent, effective March 1, 2001. In a notification letter dated December 13, 2000, the RO informed the Veteran and his representative that it had reduced his evaluation from 60 percent to 20 percent from March 1, 2001, and that if he disagreed with the decision, he should write to the RO and explain why. A VA Form 4107 explaining his right to appeal was attached. The Veteran did not respond to this notification letter or submit new and material evidence within one year. The Veteran's current representative contends that the proposed rating reduction never became final and, hence, an appeal is still pending, because the October 2000 VA Form 21-4138 was a timely NOD with respect to the reduction. More specifically, he asserts that the Veteran did not file an NOD with respect to the December 2000 rating decision formally reducing his disability rating because he thought he had filed a valid NOD with respect to the September 2000 proposal to reduce his evaluation and was not notified otherwise. He also contends that VA must accept the October 2000 NOD as a valid, timely NOD because the Veteran was never notified that the NOD would not be accepted, and because the proposed reduction constituted a decision with which he clearly disagreed. The Board is unpersuaded by these arguments. As clearly indicated on the VA Form 21-4138 the Veteran submitted in October 2000, he was responding to VA's September 2000 letter contemplating a rating reduction. This letter explicitly states that the RO had proposed to reduce his disability rating. That the reduction had not yet been finalized. The letter also informed the Veteran and his representative that he had 30 days to request a personal hearing and 60 days to submit medical or other evidence to demonstrate why the reduction should not be made. Although the Veteran styled the VA Form 21-4138 as an NOD that argued that his rating should not be reduced, this alone does not make it a valid, timely NOD with respect to the December 2000 decision to reduce his rating. With respect to rating reductions, 38 C.F.R. § 3.105(e) (2000) provided that, when a reduction is anticipated, a rating "proposing the reduction or discontinuance of compensation payments will be prepared." The beneficiary must be notified of the proposed reduction, with notice of the reasons for the contemplated action, and the beneficiary must be allowed at least 60 days to submit additional evidence to show the rating should not be reduced. Id. The regulations also provided that, if additional evidence was not received in that period, the "final rating action will be taken and the award will be reduced or continued." Id. (emphasis added). Pertinent regulations also provided that an NOD is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) and a desire to contest the result. 38 C.F.R. § 20.201 (2000). A claimant or his representative had to file their NOD with the AOJ determination within one year from the date that the agency mailed notice of the determination to him. 38 C.F.R. § 20.302(a) (2000). However, a decision that merely proposes a future action is not a "determination" by an AOJ. Although the term "determination" is not defined in the regulations, Merriam-Webster defines "determination" as "a judicial decision settling and ending a controversy," or, alternatively, as "the act of deciding definitely and firmly." Conversely, Merriam-Webster defines "proposal" as "an act of putting forward or stating something for consideration," or "something proposed: suggestion." In other words, whereas the term "proposal" implies that a decision has not yet been made, the term "determination" connotes the finality of a decision. The Board has carefully considered the Veteran's representative's arguments that the October 2000 NOD was timely and valid. Nonetheless, the Board fails to see how the Veteran's representative's contentions support a finding that a timely, valid NOD was filed with respect to the December 2000 rating decision. To that end, his representative has argued that, as a matter of procedural due process, claimants and their representatives are entitled to notice of decisions under 38 C.F.R. § 3.103(b)(1) and that all notification will advise claimants of the reason for the decision, the date the decision will be effective, the right to a hearing, and the right to initiate an appeal under 38 C.F.R. § 3.103(f). As a result, he argues, VA must accept the October 2020 Form 21-4138 as an NOD, as the Veteran was never notified that the RO would not accept the October 2020 NOD, and the August 2000 proposal was "sufficient for a decision." As set forth above, however, the proposal to reduce the Veteran's rating was just that: a proposal, not a determination that his rating should be reduced. Indeed, 38 C.F.R. § 3.105(e) takes care to draw a distinction between a proposed reduction, i.e., a "contemplated action," and a "final rating action." Moreover, 38 C.F.R. § 3.103(b) and (f) pertain to procedural due process with respect to notification requirements; the regulation does not speak to claimants' ability to file an NOD with respect to a proposed reduction or the RO's duty to respond to them. Stated differently, the regulation simply does not support the argument that he can appeal a proposed reduction or that the RO should have informed the Veteran that he could not do so. Furthermore, the Veteran and his then-representative were notified in December 2000 that he could file an appeal if he disagreed with the December 2000 rating reduction. Indeed, the December 2000 notification letter explicitly refers to his rights to appeal this decision. As such, he was properly notified of the rating decision reducing his benefits and his ability to file an NOD to initiate an appeal of this decision. On the other hand, the September 2000 notification letter informing him of the proposal to reduce his disability rating does not inform him of his appellate rights because, as set forth in 38 C.F.R. § 3.105(e), the RO had not yet made a final decision as to whether to reduce his disability rating. This, in turn, is why the September 2000 notification letter informed the Veteran that he could submit additional evidence or request a hearing, which would be used to determine whether a reduction was in fact warranted. As such, although the RO did not explicitly state that the Veteran could not appeal the proposed rating reduction, it was evident from the September 2000 letter that the RO had not yet determined whether his rating should be reduced. In other words, it was reasonably clear from the September 2000 letter that the proposed decision could not be appealed, but rather that evidence could be submitted to rebut the proposal. Last, the Board notes that the Veteran was represented by Disabled American Veterans at the time the rating reduction was proposed and finalized. To that end, the Veteran could have asked his representative to explain anything he did not understand, including whether he could file an NOD with respect to the August 2000 proposed rating or how to properly disagree with and/or appeal the December 2000 rating decision reducing his rating. Moreover, the Court of Appeals for Veterans Claims has held that claimants are deemed to have knowledge of VA regulations. See Morris v. Derwinski, 1 Vet. App. 260 (1991). Even if the Veteran himself did not understand from the September 2000 notification letter that he could not file an NOD with respect to a proposed rating reduction, he was nonetheless charged with knowledge of the pertinent regulations and could have sought clarification from either VA or his representative. It does not appear that he did so. In sum, the Board finds that the Veteran's October 2000 VA Form 21-4138 is not a valid or timely appeal of the December 2000 rating decision reducing his disability rating for his low back disability, and that the August 2000 proposed rating is not a determination that he could have appealed. The Board will thus proceed to discuss the Veteran's argument that the December 2000 rating decision should be revised due to clear and unmistakable error, or CUE. Clear and Unmistakable Error The Veteran and his representative also contend that the December 2000 rating decision reducing his disability rating from 60 percent to 20 percent from March 1, 2001, contained CUE and should be revised. More specifically, they report that the RO failed to properly apply 38 C.F.R. § 3.344 (2000) with respect to rating reductions because the evidence did not indicate that his back condition had improved under the ordinary conditions of life. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, as set forth above, the Veteran did not submit a valid, timely NOD with respect to the December 2000 rating decision, and new and material evidence was not submitted during the appellate period. As such, the December 2000 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016). As a threshold matter, the Board finds that the arguments advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claim. At the time of the December 2000 rating decision, the RO considered evidence including a letter from the Veteran's chiropractor, M.W., as well as an October 2000 DBQ submitted by the Veteran. The December 2000 rating decision also incorporated the August 2000 proposed rating by reference. The proposed reduction reflects that the RO contemplated the reduction based on the findings of an August 2000 VA examination. The Veteran's August 2000 VA examination reflects that the Veteran had surgery for lumbar spinal stenosis in early November 1999, with a second surgery in November 1999 to remove a bone fragment. He stated that he had his surgery in November 1999 due to the progression of his low back pain. Although the surgery was helpful in improving the shooting pains down his legs, he still had shooting pains when bending. He also said that his back continued to feel constantly sore. He reported that he could sit for one hour and walk for two miles, but that he was unable to run or play sports. He refused to lift any weight from the ground, and that about once a week he had back spasms that were "pretty severe" and forced him to rest in bed. He also reported diffuse weakness in his lumbar spine area, as well as nocturnal calf cramping. On physical examination, he used his arms to push out of a chair, although he did not have difficulty changing positions on the examination table. His straight leg raise was to 75 degrees on the right and to 85 degrees on the left. Lumbar flexion was to 80 degrees, extension to 20 degrees, lateral flexion to 35 degrees bilaterally, and rotation to 35 degrees bilaterally. In October 2000, the Veteran submitted a VA Form 21-4138 indicating that although the shooting pains in his legs had improved, he could not stoop or bend at the waist because of shooting pains in his legs. He also clarified that his back was also constantly stiff, fatigued, and in pain. Although he acknowledged he could sit for an hour, he explained that he had to stand, stretch, or walk around for a few minutes several times during that time to relieve discomfort or pain. Additionally, despite the August 2000 VA examiner's statement that he could walk for two miles, he reported that he had to rest after a mile and felt considerable fatigue and pain afterwards. Furthermore, although the August 2000 VA examiner stated that he had played golf, he indicated that he had to ride in a golf cart both times and had not played in several months due to the stooping, bending, fatigue, and pain. He also reported back spasms, especially at night, would wake him up. As a result, he will take Ambien to fall back asleep, in addition to Ibuprofen twice a day for pain relief. The Veteran also submitted a letter from M.W., his chiropractor, which stated that the Veteran had been his patient for the past seven years for constant hip and low back pain. Although his recent back surgery had ameliorated some of his pain, he had slowly lost functionality in various activities of daily living. The Veteran had recurrent pain rated as severe, which was increased by washing and dressing. He also had difficulty walking without creating more pain and could only lift very light objects. As a result, he could not push a vacuum cleaner or mop a floor. He could not sit in a movie or attend performances for longer than half an hour, and pain would increase after about 10 minutes of standing in any line. He also had disrupted sleep patterns due to recurrent pain and muscle spasms, as well as daily constant sciatic neuropathy with characteristic pain and demonstrable muscle spasms with little intermittent relief. This had significantly disrupted his family life, because he could not play or participate fully in activities with his grandchildren. He still regularly had shooting pains down the back of both of his legs and although his ability to travel was not limited, it increased his pain. The pain was generally worsening. Last, the Veteran submitted an October 2000 DBQ with respect to his low back pain. The DBQ indicated that he had aches in his right leg and both hips, as well as numbness in his right foot. The pain would come and go but was severe and increased by washing and dressing. As a result, he had to change his way of washing and dressing. He was only able to lift very light weights at most, and pain prevented him from walking more than one mile. He could not sit for more than one hour or stand for longer than 10 minutes. Because of his pain, his normal night's sleep was reduced, and pain limited his more energetic social interests. Although pain did not compel him to seek alternative forms of travel, it caused extra pain. Last, the DBQ indicated that his pain was gradually worsening. At the time of the RO's adjudication in December 2000, the Veteran's low back condition was rated under diagnostic code 5293 for intervertebral disc syndrome (IVDS). Unlike the current rating criteria, the then-extant rating criteria for IVDS provided that a noncompensable rating was warranted for a postoperative case of IVDS that had been cured, while a 10 percent rating was warranted for a mild case. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2000). A 20 percent rating was warranted for moderate IVDS with recurring attacks, while a 40 percent rating was warranted for severe IVDS with recurrent attacks with intermittent relief. Id. Last, a 60 percent rating was warranted for pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasms, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. At the time of the December 2000 rating decision, as now, VA had to abide by specific procedural protections that apply when a veteran's rating is reduced. 38 C.F.R. § 3.105(e) (2000). As set forth above, where the reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance in compensation payments currently being made, a rating proposing the reduction will be prepared. Id. The beneficiary will be notified of the proposed reduction and furnished reasons therefor and given 60 days for the presentation of additional evidence. Id. If no additional evidence is received during that period, the reduction will be made effective the last day of the month in which a 60-day period from the date of notice to the payee expires. Id. Here, the procedural requirements of 38 C.F.R. § 3.105(e) were met. The Veteran was informed of the August 2000 rating proposing the reduction in a September 2000 notification letter, which informed him that he had 60 days to present additional evidence and 30 days to request a pre-determination hearing. The December 2000 rating decision that reduced the rating from 60 to 20 percent, effective March 1, 2001, was issued more than 60 days after the Veteran was notified of the proposed rating reduction. As such, the procedural requirements of 38 C.F.R. § 3.105(e) were satisfied. The chief question for the Board is thus whether the RO committed CUE to the extent that it failed to properly apply the other pertinent legal authority when it reduced the Veteran's rating in its December 2000 rating decision. Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Specific requirements had to be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344 (2000). To that end, although material improvement in a physical condition is clearly reflected in an examination, the rating agency will consider whether the evidence makes it reasonable certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). In cases where doubt remains, after according due consideration to all evidence developed under paragraph (a), the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). In Brown v. Brown, 5 Vet. App. 413, 421, the Court held that the provisions of 38 C.F.R. § 3.344(a) and (b) applied to all rating reductions, even if the rating had not been in effect for five years at the time. The Court also held that the veteran need not demonstrate the retention of the higher evaluation is warranted; rather, VA must show by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In sum, a rating reduction was not proper unless a veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In the December 2000 rating decision that reduced the rating for the Veteran's low back condition from 60 to 20 percent, the RO cross-referenced the findings of the August 2000 VA examination. The RO acknowledged the medical evidence the Veteran submitted in October 2000, which reflected that his severe low back pain limited his activities of daily living. Nonetheless, the RO stated that a rating higher than 20 percent was not warranted, as there was no objective evidence showing severe IVDS with only intermittent relief from recurring attacks. Here, the Board finds that the evidence before the RO at the time of its December 2000 rating decision clearly and unmistakably showed that the Veteran's low back condition had not improved under the conditions of ordinary life. To that end, although he showed increased range of motion during his August 2000 VA examination, the evidence of record nonetheless still indicated that he had severe pain that limited his ability to perform various daily activities, such as standing, sitting, walking, dressing, washing, or lifting heavy objects. Moreover, the Veteran reported to the August 2000 VA examiner that he could not lift heavy objects and still experienced constant low back pain. Stated differently, the evidence then before the adjudicator at the time of the December 2000 rating decision did not show that the Veteran exhibited actual improvement in his ability to function under the conditions of ordinary life. Rather, the RO appears to have based its decision to ultimately reduce the Veteran's rating on a finding that the he did not demonstrate that he met the criteria for a rating in excess of 20 percent. This, however, is not an applicable basis for finding that a reduction in disability rating is warranted. Accordingly, the Board finds that the RO failed to meet its burden with respect to the finding that a reduction was warranted in the December 2000 rating decision. For this reason, the Board finds that the relevant statutory and regulatory provisions extant at the time were incorrectly applied. The error was undebatable, and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made. Indeed, pursuant to the law in effect in 2000, the 60 percent rating for the low back condition would have clearly and unmistakably been continued. As such, the December 2000 rating decision must be revised, resulting in restoration of the 60 percent disability rating under then-existing diagnostic code 5293 from March 1, 2001. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.