Opinion

Kitchens v. Brown

  • 7 Vet. App. 320
  • 1995 U.S. Vet. App. LEXIS 30
  • 1995 WL 17697
Court
United States Court of Appeals for Veterans Claims
Filed
Jan 19, 1995
Status
Published
Author
Kramer
On the bench
Holdaway, Kramer, Mankin
Cited by
33 cases

holding that when a VARO reduces a veteran’s disability rating without observing the applicable VA regulations, the reduction is void ab initio.

How later courts described this case

  • holding that when a VARO reduces a veteran’s disability rating without observing the applicable VA regulations, the reduction is void ab initio.
  • noting 11 that, where the Board fails to observe applicable law and regulation in reduction cases, the Court will set it aside as "not in accordance with law"
  • noting that a 100% disability rating had been in effect for more than four years before the rating action on appeal reduced his disability rating to 10%
  • reversing the Agency’s rating reduction based on noncompliance with 38 C.F.R. § 3.344(a) regarding protected ratings, and remanding to the Board to reinstate the prior rating

Written by the judges who cited it.

The opinion

KRAMER, Judge,

concurring:

In sustaining a rating reduction for epilepsy, the Board of Veterans’ Appeals, pursuant to 38 C.F.R. § 4 .124a, Diagnostic Code (DC) 8910 (1994), must make, based on adequate evidence of record, a finding as to the frequency and type of seizures that the veteran is experiencing. That finding must then, under the DC, support a rating at the reduced level. Here neither the medical opinion relied on by the Board nor the lay statements provide such evidence, and consequently the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 38 U.S.C. § 7261 (a)(3)(A).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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