BVA9502148 DOCKET NO. 93-06 124 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to restoration of a 40 percent disability evaluation for residuals of a low back injury with fracture of the L-3 transverse process, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Auer, Counsel INTRODUCTION The veteran served on active duty from November 1980 to February 1984. This appeal arises from an August 1991 rating decision of the Department of Veterans Affairs (VA), Indianapolis, Indiana, Regional Office (RO), which reduced the evaluation for the veteran's service-connected residuals of a low back injury with fracture of the L-3 transverse process from 40 to 20 percent, effective from April 27, 1991. Apart from the issue addressed in this decision, the veteran, in a letter received in October 1991, asserted that he was probably entitled to an evaluation greater than the previously assigned 40 percent. The veteran essentially has argued, for purposes of this appeal, that the 40 percent rating should not have been reduced. In view of the veteran's assertion and the Board of Veterans' Appeals (Board) decision in this appeal, however, the RO should clarify whether the veteran wishes to pursue an appeal for entitlement to a rating in excess of 40 percent for residuals of a low back injury with fracture of the L-3 transverse process. If so, the matter should be appropriately developed and addressed. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that his service- connected residuals of a low back injury with fracture of the L-3 transverse process has not improved. He claims that he when he has been examined by the VA, the physicians were more concerned with the symptoms associated with his cervical spine and that his lower back was ignored. He complains of experiencing recurring attacks of back pain with intermittent relief, strain of the lumbosacral spine with scoliosis, marked limitation of bending, loss of lateral movement, and arthritis of the spine. The veteran's representative has argued that the reduction of the rating evaluation was not in accord with the provisions of 38 C.F.R. §§ 3.344 (1993). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the RO failed to take into account pertinent regulations when rendering its reduction decision in August 1991. Thus, the decision was void ab initio, requiring a retroactive reinstatement of the veteran's 40 percent rating for residuals of a low back injury with fracture of the L-3 transverse process from April 27, 1991, the effective date of the reduction. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The 40 percent rating for the veteran's residuals of a low back injury with fracture of the L-3 transverse process had been in effect for more than five years prior to the reduction to a 20 percent rating, effective April 27, 1991. 3. The RO, by its rating decision of August 1991, failed to take into account regulations pertaining to the stabilization of disability evaluations when it reduced the evaluation for the veteran's service-connected residuals of a low back injury with fracture of the L-3 transverse process. CONCLUSION OF LAW Restoration of the 40 percent evaluation previously assigned for residuals of a low back injury with fracture of the L-3 transverse process is warranted, effective April 27, 1991. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.40, 4.41, 4.45, 4.7, 4.71a, Diagnostic Codes 5299-5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) in that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed. Service connection for residuals of a low back injury with fracture of the L-3 transverse process was established in a rating decision of January 1989. The grant of service connection for residuals of a low back injury with fracture of the L-3 transverse process was based upon a history in service of two motor vehicle accidents, the second resulting in the fracture of the transverse process at the L-3 level. The 40 percent rating was assigned from November 1, 1985 and the disorder was rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5293. The instant issue involves a rating reduction, not a rating increase. 38 C.F.R. §3.344(a) provides, in pertinent part: Ratings on account of diseases subject to temporary or episodic improvement...will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.... Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Furthermore, 38 C.F.R. § 3.344(c) provides: The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re- examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (1993). A 40 percent evaluation for residuals of a low back injury with fracture of the L-3 transverse process had been in effect from November 1, 1985, to April 27, 1991, a period of more than five years, thus fulfilling the requirement of 38 C.F.R. § 3.344(c). Therefore, in order to properly reduce the evaluation, the evidence must demonstrate sustained improvement that is reasonably certain to be maintained under the ordinary conditions of life. When examined by the VA in March 1989, the veteran's complaints associated with his lower back included cramping and shooting pains to the lower part of the back, trouble walking, standing or sitting too long, and the inability to perform actions involving heavy lifting. Physical examination revealed a bulging in the lumbar area of the spine, but the spine was described as otherwise unremarkable. The veteran could bend over and touch his knees and could perform a deep knee bend to an angle of 110 degrees. Forward flexion was to 70 degrees; backward extension was to 10 degrees; and rotation was to 20 degrees on either side with complaints of pain. Knee and ankle jerks were equal and active. Patrick's test was positive with a drop out of almost 60 degrees. X-ray examination of the lumbar spine revealed normal findings. On VA examination in April 1991, the veteran complained of lower back pain. The lumbar back pain was described as chronic and the veteran had difficulty ambulating and bending. Physical examination was essentially limited to the cervical spine, but it was noted that there was no evidence of point tenderness over the lumbar spine. The diagnoses included chronic lower back pain without a neurological defect. Based upon a review of the April 1991 examination, the RO reduced the evaluation for the veteran's service-connected residuals of a low back injury with fracture of the L-3 transverse process in August 1991. The claims file contains additional records showing treatment from private and VA sources. Although later developed evidence may or may not justify a reduction, it is clear that the rating decision of August 1991 was based on the evidence presented in only one less-than-complete examination and did not take into account whether material improvement had been demonstrated, or whether the evidence made it reasonably certain that the improvement would be maintained under the ordinary conditions of life. Hence, the reduction was made in violation of 38 C.F.R. § 3.344 (1993). The RO also failed to take into account other pertinent regulations generally applicable to rating reductions, such as 38 C.F.R. §§ 4.1 and 4.2 (requiring that each disability be viewed in relationship to its history and that examination reports be interpreted in light of the disability's whole recorded history) and § 4.13 (requiring the rating agency to assure itself that there is an actual change in conditions when any change in evaluation is made). Based on the foregoing, the Board concludes that the RO's August 1991 determination is deemed void ab initio as not in accordance with law, requiring retroactive reinstatement of the veteran's 40 percent rating from April 27, 1991, the effective date of the reduction. See generally, Brown v. Brown, 5 Vet.App. 413 (1993). ORDER Restoration of the 40 percent evaluation for residuals of a low back injury with fracture of the L-3 transverse process is warranted, effective April 27, 1991, is warranted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.