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).