DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The veteran, who served from April 2000 to July 2002, appeals a March 2021 rating decision that reduced his disability evaluation for a lumbar spine condition from 40 percent to 20 percent, effective October 29, 2020. The veteran also appealed the denial of a compensable rating for a lower back scar. The Board found the lumbar spine rating reduction improper. The veteran's 40 percent rating had been in effect for over five years, and the evidence did not demonstrate sustained improvement in his symptomatology or that any improvement would be maintained under ordinary conditions of life. The Board noted that the VA examinations relied upon for the reduction appeared full and complete, but the rationale for sustained improvement was unclear, and the veteran's own reports indicated worsening symptoms. The Board concluded the AOJ failed to meet its burden under 38 C.F.R. § 3.344 to show material improvement, thus restoring the 40 percent rating. Regarding the lower back scar, the Board found the evidence persuasively weighed against a compensable rating. The scar was small, not painful or unstable, and did not meet the criteria for higher ratings under diagnostic codes 7801, 7802, or 7804. Therefore, the Board concluded a 0 percent rating under DC 7805 was appropriate, denying an increased rating for the scar.

Rationale

Reduction improper due to lack of sustained improvement; AOJ failed to meet burden under 38 C.F.R. § 3.344; Restoration of 40 percent rating warranted

Full Decision Text

Citation Nr: A26036079
Decision Date: 04/17/26	Archive Date: 04/17/26

DOCKET NO. 210513-159430
DATE: April 17, 2026

ORDER

The reduction of the disability evaluation from 40 to 20 percent, effective October 29, 2020, for a lumbar spine disability, was improper, and restoration to 40 percent is granted. 

Entitlement to a compensable rating for a lower back scar is denied.

FINDINGS OF FACT

1. A March 2021 rating decision reduced the evaluation for the Veteran's service-connected lumbar spine disability from 40 percent to 20 percent, effective October 29, 2020.

2. As of October 29, 2020, a 40 percent rating for a lumbar spine disability had been in effect for more than five years.

3. The probative evidence of record does not show actual improvement in the Veteran's ability to function under ordinary conditions of life and work due to his lumbar spine disability from October 29, 2020.

4. The Veteran's lower back scar is not painful or unstable and does not cover an area of 144 square inches (929 sq. cm.) or greater.

CONCLUSIONS OF LAW

1. Reduction of the disability evaluation to 40 percent, effective October 29, 2020, for a lumbar spine disability was improper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.343(a), 3.344, 4.130, Diagnostic Code 5243.

2. The criteria for an initial compensable disability rating for a lower back scar are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.14, 4.118, DC 7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty from April 2000 to July 2002.

In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A hearing was scheduled for November 25, 2024. On July 8, 2024, the Veteran, through his representative, withdrew the hearing request in writing. As such, the Board finds that the Veteran's request for a hearing is deemed withdrawn. Consequently, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following the following the July 8, 2024, notice of withdrawal of the hearing. See 38 C.F.R. §20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the request to withdraw the hearing, or (2) more than 90 days following the withdrawal of hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

1. Whether the reduction from 40 percent to 20 percent for a lumbar spine disability, effective October 29, 2020, was proper. 

The Veteran contends that his 40 percent rating for his lumbar spine disability was in effect for more than 10 years, and that he had not demonstrated sustained improvement in his lumbar spine symptomatology at the time of the rating reduction. See May 2021 VA Form 10182; October 2025 Appellate Brief.

The Board concludes that the rating reduction was improper. The Veteran's 40 percent rating for his lumbar spine disability had been in effect for over 5 years at the time of the reduction, and the most probative evidence did not demonstrate that the Veteran's lumbar spine disability had shown material improvement under the ordinary conditions of life at the time that the disability rating was reduced.

Disability benefits such as those awarded for service connection are a "protected property interest and may not be discontinued without due process of law." Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). Veterans receiving disability benefit payments should not be deprived of that income without receiving appropriate notice and an opportunity to respond. But see Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (finding no reduction in compensation paid occurred despite reduction in single rating assigned to disability; Tatum v. Shinseki
 the ordinary conditions of life at the time that the disability rating was reduced.

Disability benefits such as those awarded for service connection are a "protected property interest and may not be discontinued without due process of law." Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). Veterans receiving disability benefit payments should not be deprived of that income without receiving appropriate notice and an opportunity to respond. But see Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (finding no reduction in compensation paid occurred despite reduction in single rating assigned to disability; Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010) (staged rating not a reduction because no compensation was being received at the time of the staged rating); VAOPGCPREC 71-91. 

If a rating reduction results in a decreased level of compensation or discontinuance of compensation paid to a veteran, VA must follow the procedural safeguards in 38 C.F.R. § 3.105(e). First, VA must issue a rating proposing the reduction or discontinuance that sets forth all material facts and reasons. VA must notify the veteran of the proposed reduction using his or her latest address of record and provide detailed reasons for the reduction. The veteran must be given 60 days to present additional evidence to show that compensation payments should be continued at their present level. VA must also inform the veteran that he or she may request a predetermination hearing within 30 days from the date of the notice. If no hearing is requested and no additional evidence is received within the 60-day period, VA may take final rating action and implement the reduction or discontinuance 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). 

If the disability rating at issue was in effect for five years or more, then VA must also apply 38 C.F.R. § 3.344(a) and (b). 38 C.F.R. § 3.344(c). This regulation requires VA to do four specific things: 1) determine whether the recent examination is full and complete; 2) determine whether the examinations are less full and complete than the examinations used to authorize payments and, if they are, not use them as the basis for a reduction; 3) not reduce ratings for diseases subject to temporary and episodic improvement based on a single examinations unless all evidence of record demonstrated sustained improvement; and 4) consider whether any material improvement in physical or mental condition makes it reasonably certain the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Brown v. Brown, 5 Vet. App. 413 (1993).

If VA reduces the disability compensation paid to a veteran without following these substantive regulatory requirements for reduction, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999).

The Board initially granted service connection for a lumbar spine disability in October 2002 with an evaluation of 20 percent, effective July 23, 2002. In a February 2012 rating decision, the AOJ granted a 40 percent rating, effective February 15, 2011. 

In March 2021, the AOJ issued a rating decision reducing the Veteran's service-connected lumbar spine disability from 40 percent to 20 percent, effective October 29, 2020. This reduction does not affect the Veteran's overall disability evaluation or compensation benefit payment, as his combined evaluation remained at 80 percent disabling. See March 2021 Rating Decision; March 2021 Code Sheet. As a result, the procedural safeguards in 38 C.F.R. § 3.105(e) do not apply. 

But because the Veteran's 40 percent rating had been in effect for more than 5 years at the time of the March 2021 rating reduction, 38 C.F.R. § 3.344 applies. Here, the May 2017 and October 2020 VA examinations and the December 2020 VA medical opinion relied upon by the RO appear to be full and complete and at least as full and complete as the February 2011 VA examination which was used to assign an increased rating of 40 percent in February 2012. Looking at the April 2020 rating decision, the RO stated that VA examination results from May 2017 and October 2020 "confirm a sustained improvement" in the Veteran's service-connected lumbar spine condition. But even a cursory read of the October 2020 examination reveals worsening symptomatology
 of the March 2021 rating reduction, 38 C.F.R. § 3.344 applies. Here, the May 2017 and October 2020 VA examinations and the December 2020 VA medical opinion relied upon by the RO appear to be full and complete and at least as full and complete as the February 2011 VA examination which was used to assign an increased rating of 40 percent in February 2012. Looking at the April 2020 rating decision, the RO stated that VA examination results from May 2017 and October 2020 "confirm a sustained improvement" in the Veteran's service-connected lumbar spine condition. But even a cursory read of the October 2020 examination reveals worsening symptomatology than that documented by the May 2017 examination, including additional limitations in range of motion of the Veteran's lumbar spine. While these examinations may suggest some increase in range of motion of the Veteran's lumbar spine from the 2011 examinations, the Board cannot understand from the rationale set forth in the rating decision how the findings from 2017 and 2020 demonstrate a sustained improvement. Further, the AOJ did not address whether any material improvement, if any were present, makes it reasonably certain the improvement shown in the May 2017 and October 2020 VA examinations would be maintained under the ordinary conditions of life. 

To the extent that it can be inferred that the AOJ made its reduction on the basis of material improvement that was capable of being sustained under the conditions of ordinary life, the Board disagrees with the AOJ's assumption. 

The Board finds that the evidence of record at the time of the May 2021 rating decision that implemented the reduction did not demonstrate that any improvement shown in the May 2017 and October 2020 VA examinations would be maintained under the ordinary conditions of life. Indeed, the record appears to show that the Veteran had in fact demonstrated worsening lumbar spine symptomatology from May 2017 to October 2020. In the February 2025 Appellate Brief, the Veteran asserted, through his representative, that he has not sustained improvement. See also May 2021 VA Form 10182. At the very least, nothing in the record contradicts the Veteran's statements to this effect, and the AOJ did not make such a finding or conduct any analysis to that end.

In light of the Veteran's reports and the lack of findings by the AOJ, the Board finds that the AOJ failed to meet its burden to show that the Veteran's symptoms had materially improved to warrant a reduction in rating from 40 percent to 20 percent for his lumbar spine disability. 

In conclusion, the Board finds that the AOJ failed to comply with the requirements of 38 C.F.R. § 3.344 and did not establish that material improvement occurred prior to the March 2021 rating decision on appeal that would be sustained under the ordinary conditions of life. Therefore, the Board concludes that the reduction was not proper and restoration of the 40 percent rating for a lumbar spine disability is warranted.

Increased rating

Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. Id. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

The veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility.

When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.
 of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility.

When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

VA is responsible for determining whether the evidence supports the claim or is in relative balance, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied.

2. Entitlement to an increased rating greater than 0 percent for a lower back scar.

The Veteran's lower back scar disability is rated 0 percent from October 21, 2016, under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. On May 29, 2019, he submitted a claim for TDIU, which the AOJ construed as a supplemental claim for increased ratings. See Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940); Chisolm v. Collins, 38 Vet. App. 140 (2025) (holding that in the modernized review system (AMA) a supplemental claim need not necessarily be filed on the designated Supplemental Claim form as VA has not restricted supplemental claims to a specific form even though it has the authority to do so). He contends that his lower back scar disability warrants a compensable rating. Here, the period on appeal begins March 29, 2019, the date of the increased rating claim, including a one-year lookback period. See 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (allowing for a one-year lookback to determine if there is an ascertainable date on which the Veteran's disability increased in severity in the year prior to the date VA received the increased rating claim). As an initial matter, the Board finds that the record does not contain evidence of worsening prior to March 29, 2019. Therefore, the period on appeal begins with the March 29, 2019, claim.

As noted above, the Veteran's lower back scar is rated under DC 7805. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. 

Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 be rated under an appropriate diagnostic code.  

The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's lower back scar under Diagnostic Code 7805, as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04.  

Evaluations of scars are governed by 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800 to 7805.

Initially, the Board notes that the Veteran does not have scars of the head, face or neck, thus, DC 7800 is inapplicable. 38 C.F.R. § 4.118, DC 7800.

Diagnostic Code 7801 encompasses burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801.

Diagnostic Code
 rating provided under Diagnostic Codes 7800-04.  

Evaluations of scars are governed by 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7800 to 7805.

Initially, the Board notes that the Veteran does not have scars of the head, face or neck, thus, DC 7800 is inapplicable. 38 C.F.R. § 4.118, DC 7800.

Diagnostic Code 7801 encompasses burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801.

Diagnostic Code 7802 provides disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, and a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7802.

Diagnostic Code 7804 addresses disability ratings for scars that are unstable or painful. A 10 percent rating is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable. 38 C.F.R. § 4.118, DC 7804.

Diagnostic Code 7805 encompasses scars, other; and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, DC 7805. 

The Veteran was afforded a VA examination in November 2020 for his lumbar spine disability. The examiner provided a diagnosis of two lumbar spine scars, one measuring 3.5 cm by 0.2 cm and one measuring 4.0 cm by 0.2 cm. The scars approximated a total area of 16 square centimeters (2.48 square inches). No scars were painful or unstable on examination. The examiner did not indicate that the scars caused any other disabling effects.  

In light of this evidence, the Board concludes that a compensable rating is not warranted for the lower back scar under DC 7805, for other scars and other effects of scars. The lower back scar is not a burn scar, has not been reported as painful, and does the medical evidence does not show that the scar is unstable or greater than 39 square centimeters. See 38 C.F.R. § 4.118, DCs 7801, 7802, 7804. Accordingly, an additional compensable rating for residuals of the Veteran's lower back scar is not warranted under DC 7801, 7802, or 7804.

Accordingly, the Board concludes that a 0 percent rating, but no higher, is warranted under DC 7805. The evidence persuasively weighs against the claim for a higher rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 

 

Caroline B. Fleming

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michel-Rossi, Mayerline

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.