The reduction of the evaluation from 40 percent to 20 percent for multilevel degenerative disc disease of the L2-L3 disc herniation (low back disability), effective September 1, 2014, was improper; therefore,…

Citation Nr: 26001380 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 16-00 899 DATE: January 30, 2026 ORDER The reduction of the evaluation from 40 percent to 20 percent for multilevel degenerative disc disease of the L2-L3 disc herniation (low back disability), effective September 1, 2014, was improper; therefore, restoration of the 40 percent rating is granted. REMANDED Entitlement to a rating in excess of 40 percent for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The procedural requirements pursuant to 38 C.F.R. § 3.105(e) in executing the reduction of the disability rating for low back disability were not met. CONCLUSION OF LAW The reduction of the evaluation from 40 percent to 20 percent for low back disability, effective September 1, 2014, was improper and the 40 percent rating is restored. 38 U.S.C. § 1155; 38 C.F.R. § 3.105(e); Brown v. Brown, 5 Vet. App. 413 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1990 to July 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing. The transcript of the hearing is of record. In May 2019 and January 2023, the Board remanded the claims for further development. 1. Propriety of the reduction for low back disability from 40 percent to 20 percent, effective September 1, 2014. The Veteran contends that the rating reduction from 40 percent to 20 percent for his low back was improper, testifying that the March 2014 VA examination that was the basis for the reduction was inadequate. He reported that his back pain had in fact gotten worse. See December 2018 Hearing Transcript; December 2023 VA 21-4138 Statement in Support of Claim. The Veteran's low back disability was granted service connection at 10 percent, effective April 30, 2008; increased to 40 percent, effective May 25, 2010; and decreased to 20 percent, effective September 1, 2014. See July 2024 Rating Decision - Codesheet. In the present case, the Veteran's appeal for the reduction in rating for his service-connected low back disability stems from a November 2013 increased rating claim. Following the development of the claim, the RO issued a March 2014 proposal to reduce the Veteran's low back disability rating and then reduced it in the June 2014 rating decision, which is the subject of this appeal. See November 2013 VA 21-526EZ, Fully Developed Claim; March 2014 and June 2014 Rating Decision - Narrative. When the propriety of a rating reduction is at issue, the focus is on compliance with the special due process considerations applicable to reductions, and on whether the evidence at the time of the decision reducing the evaluation supports the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993); Stern v. McDonough, 34 Vet. App. 51 (2021). To reduce a disability rating properly, VA must satisfy both procedural and substantive criteria. Procedurally, when the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. Specifically, the Veteran must be notified at his or her latest address of record of the contemplated action, furnished detailed reasons thereof and given 60 days to present additional evidence to show that compensation payments should be continued at their present level. The Veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105(e). As outlined below, the Board finds that the requirements pursuant to 38 C.F.R. § 3.105(e) were not properly carried out by the RO. By way of background, prior to the Veteran's low back reduction from 40 to 20 percent, effective May 25, 2010, the Veteran's total disability rating was 50 percent; effective September 1, 2014, the date of the Veteran's reduction from 40 to 20 percent for low back disability, the Veteran's total disability rating was reduced to 30 percent. Since the low back disability reduction from 40 percent to 20 percent affected the overall disability rating, the due process protections of 38 C.F.R. § 3.105(e) are applicable. Upon review, the Board finds that the procedural requirements of 38 C.F.R. § 3.105(e) have not been followed. In this regard, in November 2013, the Veteran submitted four documents, the low back increased rating claim, a statement, a letter from his representative, and a TDIU claim, all of which clearly identifying his address located on Locust Lane. Moreover, a March 2014 letter indicated his scheduled VA examination was issued, noting the Locust Lane address, and the Veteran presented for his VA examination. However, correspondence in December 2013, and the March 2014 letter including the RO's proposed reduction with instructions regarding his options for the proposed reduction were sent to the address located on Maple Street. Moreover, the March 2014 proposed reduction letter appears to have been noted as "returned mail." Furthermore, following the June 2014 rating decision, both the Veteran and his representative indicated his address was located on Locust Lane in correspondence from August 2014. As this reduction decreased his overall rating and the notices were not sent to the correct address, the Board finds the procedural requirements for the reduction under 38 C.F.R. § 3.105(e) have not been followed. Thus, the June 2014 rating decision that reduced the Veteran's low back disability rating was improper and is void ab initio. As a final matter, because the procedural requirements were not met, the Board finds that a discussion of the substantive requirements of the rating reduction, regardless of the length that his low back rating has been in effect, is not applicable. See 38 C.F.R. § 3.344(c). REASONS FOR REMAND 2. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. The Veteran, via his representative, contends that the Veteran's low back disability has worsened, especially considering the Veteran is in receipt of Social Security Administration (SSA) disability and that during the pendency of the appeal, the Veteran was granted service connection for lower extremity radiculopathy. The Veteran also believes the March 2024 VA examination and subsequent addendums were inadequate. See September 2024 Appellate Brief. For the following reasons, the Board finds that another remand is warranted. First, the Board finds that the RO did not substantially comply with its January 2023 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the January 2023 remand instructed the RO to inform the Veteran of VA's efforts to obtain private treatment records from Dr. S.O. from 2015 to the present. The Board notes that the copy of the remand sent to the Veteran was noted as "returned mail." An August 2023 letter informed the Veteran that the RO was still working on his claim, and requested he complete and return an authorization form to obtain treatment records from Dr. S.O. See January 2023 BVA Decision and Returned Mail; August 2023 Subsequent Development Letter. The Board notes that the August 2023 letter was not marked as "returned mail." However, following a call to the Veteran's daughter, the Veteran called back and informed the RO of a new address. See December 2023 VA 27-0820 Report of General Information (2x). Upon review, the Board finds a remand is warranted for further development. First, it does not appear that the Veteran was informed that of the RO and VA attempted to obtain treatment records from Dr. S.O. As such, another attempt should be made to ensure the Veteran is aware of the RO and VA's attempt to inform him of the attempts made to obtain treatment records from Dr. S.O., and if necessary, provide the Veteran another opportunity to obtain and/or associate those treatment records with the file. Additionally, as the Veteran has indicated that his back disability has worsened, a remand is necessary to address the current severity. 3. Entitlement to TDIU is remanded. Lastly, the Board finds the Veteran's TDIU claim is intertwined with the increased rating claim for back disability currently on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). A remand of this matter is warranted as well. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records and associate them with the claims file. 2. Inform the Veteran of VA's efforts to obtain private treatment records from Dr. S. Owens from 2015 to the present, and if necessary, have the Veteran complete and return an authorization form to obtain the records. (Continued on the next page) ? 3. Next, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his service-connected low back disability. 4. Following the completion of the above, readjudicate the issue of TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Garey 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.