BVA9505055 DOCKET NO. 93-10 607 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a 10 percent rating for residuals, fractures of the metatarsals of the left foot, currently rated as noncompensable. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs INTRODUCTION The veteran's active service extended from October 1969 to March 1986. This appeal arose from a May 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg which reduced a 10 percent rating for residuals, fractures of the metatarsals of the left foot, to noncompensable effective in August 1992. The 10 percent rating had been in effect since March 1986, that is, for more than five years. CONTENTIONS OF APPELLANT ON APPEAL The veteran expressed disagreement with the decision to reduce the disability evaluation at issue. 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(s). 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 restoration of the 10 percent rating for the left foot disorder is warranted. FINDINGS OF FACT 1. The rating decision of May 1992, which reduced the 10 percent rating for residuals, fractures of metatarsals of the left foot, which had been in effect for more than five years, was based on a VA examination of January 1992. The reduction was not based on a record which clearly showed sustained improvement. 2. The May 1992 rating reduction was contrary to, and without consideration of, 38 C.F.R. § 3.344. CONCLUSION OF LAW Restoration of the 10 percent rating for residuals, left metatarsal fractures, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.344, Part 4, Diagnostic Code 5283 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection for the residuals, left metatarsal fractures, was granted by rating decision in May 1987. A 10 percent rating was established for the disability effective in March 1986. The rating was based on evidence showing that the veteran had sustained fractures to the second through the fifth left metatarsophalangeal joints and the fifth metatarsal. Findings included discomfort to pressure on the fifth toe and along the medial portion of the foot. The 10 percent rating was continued by rating decision in August 1988. This rating decision followed VA examination in July 1988. The examination included history of pressure symptoms in the left foot when the veteran wore hard shoes. There was a bony prominence on the foot. In a rating action of February 1992, the RO proposed that the 10 percent rating be reduced based on a VA examination report in which it was stated that there were no objective signs of sequelae of the metatarsal fractures. The reduction to a noncompensable rating was accomplished by rating decision in May 1992, with an effective date in August 1992. The 10 percent rating which is the subject of this appeal had been in effect for more than 5 years. Under these circumstances, the provisions of 38 C.F.R. § 3.344 are for application. Under these provisions, 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. In this case, we have no basis upon which to assume that the metatarsal fracture residuals are not subject to episodic or temporary improvement. The rating reduction is, therefore, subject to the aforementioned provisions of 38 C.F.R. § 3.344. In our opinion, the single examination report upon which the reduction was based, while showing improvement, does not provide the necessary evidence of sustained improvement to support the reduction. That is, when the 10 percent rating was assigned in 1987, the clinical evidence had shown that the left foot was symptomatic upon pressure. A similar picture was reported on examination in 1988. The single examination report in 1992 stating that the foot was asymptomatic does not establish the sustained improvement required to justify the reduction. Moreover, the United States Court of Veterans Appeals has "consistently held that ...a reduction (in rating) made without observance of the law is void ab initio. (Citations omitted.)" Murincsak v. Derwinski, 2 Vet. App. 363, 369 (1992). In this case, the rating reduction of May 1992 was not based on a finding of sustained improvement. Moreover, the RO failed to apply 38 C.F.R. § 3.344, and, therefore, the reduction was not in accordance with the law. The 10 percent rating is accordingly restored. ORDER Restoration of a 10 percent rating for residuals, fractures of the metatarsals of the left foot, is granted, subject to the laws and regulations which govern the payment of monetary benefits. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS 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.