# Kitchens v. Brown

> United States Court of Appeals for Veterans Claims · January 19, 1995 · 7 Vet. App. 320

URL: https://www.frixlaw.com/law-library/cases/6612279

## Case

- **Full name:** James N. KITCHENS v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** January 19, 1995
- **Citations:** 7 Vet. App. 320; 1995 U.S. Vet. App. LEXIS 30; 1995 WL 17697
- **Precedential status:** Published
- **Opinion:** Concurrence by Kramer
- **Judges:** Holdaway, Kramer, Mankin
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6612279

## How later opinions describe it (automated extraction)

- 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
- reversing and reinstating where the Board reduced a rating without complying with § 3.344 and reversed the burden of proof

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612279. Public record. Not legal advice.