Citation Nr: A25106972 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 241227-508029 DATE: December 11, 2025 ORDER The reduction of the rating for degenerative disc disease (DDD) other than intervertebral disc syndrome, herniated disc, intervertebral disc syndrome, from 40 percent to 20 percent, effective March 1, 2025, was improper; reinstatement of the 40 percent rating is therefore granted. FINDING OF FACT An improvement of the Veteran's ability to function under the ordinary conditions of life and work as a result of her service-connected DDD has not been demonstrated. CONCLUSION OF LAW Restoration of a 40 percent disability rating for degenerative disc disease other than intervertebral disc syndrome, herniated disc, intervertebral disc syndrome, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.2, 4.10, 4.71a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 2022 to August 2022. In the December 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This appeal arises out of the Veteran's disagreement with a decision to reduce the rating assigned for her DDD from 40 percent to 20 percent, effective March 1, 2025. By way of background, in February 2024, the Veteran filed a VA Form 21-526EZ, Fully Developed Claim, requesting an increased rating for her service-connected DDD. At the time, the Veteran's DDD had been rated 40 percent disabling effective September 1, 2022. After appearing for a VA examination in June 2024, the AOJ issued a June 2024 rating decision proposing to reduce the Veteran's DDD from 40 to 20 percent. After providing notice to the Veteran and a 60-day period to respond, the AOJ scheduled, and the Veteran appeared at another examination in December 2024, and in a December 2024 rating decision, the AOJ reduced the Veteran's disability rating for DDD from 40 percent to 20 percent, based on a finding of improvement. Based on the evidence of record, the Board finds the evidence is sufficient restore the previously assigned 40 percent rating. For reductions in ratings to be properly accomplished, specific requirements must be met. See 38 C.F.R. §§ 3.105(e), 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Here, because the Veteran's overall disability rating would have been negatively affected by the reduction, there was a requirement that the Veteran first receive advance notice of a proposed reduction with an opportunity to respond, as per the provisions of 38 C.F.R. § 3.105(e). The AOJ complied with these notice requirements, and there is no argument from the Veteran or her attorney to the contrary. With regard to disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. Where a veteran's schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. With respect to disabilities that are likely to improve (i.e., those in effect for less than 5 years), as in this case, reexaminations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Notably, VA is required in any rating-reduction case "to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) ("[t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition"). Furthermore, 38 C.F.R. § 4.10 provides that "[t]he basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment," and 38 C.F.R. § 4.2 directs that "[e]ach disability must be considered from the point of view of the veteran working or seeking work." "Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10. In a rating reduction case, VA has the burden of establishing that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Upon review of the record in this case, the Board finds that the evidence weighs against the finding of an improvement in the Veteran's DDD disability, under the ordinary conditions of life and work, at the time of the reduction. The Board acknowledges that the June 2024 VA examination revealed improvement in the objectively measured severity of the Veteran's limitation of forward flexion of the thoracolumbar spine, as compared with the results documented in the prior examination the Veteran underwent for the disability. However, the evidence does not reflect material improvement, nor is there evidence that the impact of the Veteran's DDD on the ordinary conditions of his life or work has improved. Further, the Board finds that both the June 2024 and December 2024 VA examinations have inconsistencies and are therefore inadequate. For instance, the Veteran throughout the record has stated that she experiences functional loss after repeated use over time, including standing too long, sitting too long, and being in the same position for too long. However, the VA examiners noted that the Veteran did not report any functional loss after repeated use over time. Hence, the VA examinations are inadequate for rating purposes. Moreover and, at a minimum, the Board cannot say that the results of the VA examinations reflect actual improvement under the ordinary conditions of life and work. The Veteran has consistently maintained that the severity of her lower back condition has caused increasing difficulty on her ability to function under the ordinary conditions of life and/or work. She contends that, contrary to VA's finding that the severity of her service-connected DDD has improved, the difficulty imposed on her by her DDD condition has in fact worsened and will continue to worsen over time, as her condition is chronic and permanent. See July 2024 Statement by Dr. D.B. The Veteran has also stated pain, flare-ups, and the consistent use of pain medication and physical therapy for her DDD. Notably, the Veteran is competent to report her symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Under these circumstances, and based on the record as a whole, the Board finds that the rating reduction from 40 percent to 20 percent for the Veteran's DDD was improper, as the competent evidence of record, lay and medical, does not demonstrate a material improvement in the Veteran's condition under the ordinary conditions of life and work. Therefore, the Board restores the 40 percent rating for DDD, effective March 1, 2025, the date of the rating reduction. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Fam, 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.