RESIDUALS OF FRACTURES

Summary

The veteran, who served in the United States Marine Corps from December 1981 to March 1989, appeals the reduction of his disability rating for a service-connected healed left ankle fracture. The veteran was initially granted a 20 percent rating for this condition in April 2023. However, in December 2024, the Agency of Original Jurisdiction (AOJ) reduced this rating to 0 percent, citing findings from a May 2024 VA examination. The veteran contended this reduction was improper, supported by statements from himself and his wife asserting that his left ankle was not examined during the May 2024 VA examination. The Board agreed, finding that the AOJ failed to demonstrate that the veteran's disability had improved to the extent that he could better function under ordinary conditions of life and work, a necessary prerequisite for a rating reduction. The Board noted that the reduction was based solely on the May 2024 examination, but the record did not show sustained improvement in the veteran's daily functioning or employment capabilities. Consequently, the Board found the reduction void ab initio and granted the restoration of the 20 percent disability rating for the healed left ankle fracture.

Rationale

Reduction of rating requires showing of actual improvement in functioning under ordinary conditions of life and work.; AOJ failed to demonstrate sustained improvement or address practical implications of symptoms on daily life/employment.; Veteran's and wife's statements credible in establishing no improvement in daily life conditions.

Full Decision Text

Citation Nr: A26037150
Decision Date: 04/21/26	Archive Date: 04/21/26

DOCKET NO. 250608-552617
DATE: April 21, 2026

ORDER

The reduction of the 20 percent rating for healed left ankle fracture with residual pain and stiffness to noncompensably disabling (0 percent), effective March 1, 2025, was not proper; restoration of the 20 percent rating is granted.

FINDING OF FACT

At the time of the December 2024 rating decision, the Agency of Original Jurisdiction (AOJ) failed to make a specific determination that there was any improvement in the Veteran's service-connected healed left ankle fracture under the ordinary conditions of his life and work.

CONCLUSION OF LAW

The reduction of the rating for healed left ankle fracture from 20 percent disabling to noncompensably disabling (0 percent) is void ab initio; the criteria for the restoration of the 20 percent rating have been met. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. § 3.344.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active military service in the United States Marine Corps from December 1981 to June 1986 and from July 1986 to March 1989.

In January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2024 rating decision. In April 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2024 decision.

In the June 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2024 AOJ decision. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Propriety of the reduction of the 20 percent rating for healed left ankle fracture disability to 0 percent disabling, effective March 1, 2025.

The Veteran contends that the rating reduction from 20 percent disabling to noncompensably disabling (0 percent) for his service-connected healed left ankle fracture disability was improper. For the following reasons, the Board agrees and finds that the rating should be restored.

To properly reduce a disability rating requires VA to meet both procedural and substantive requirements.

Procedurally, where 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. 38 C.F.R. § 3.105 (e). The beneficiary will be notified, at his latest address of record, of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. The beneficiary must also be informed that he may request a pre-determination hearing prior to the reduction. 38 C.F.R. § 3.105 (e)(i)(1). Following this 60-day period, a 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 beneficiary of the final rating action expires. Id.

Here, because there was a decrease in the Veteran's combined disability rating, the due process requirements outlined in 38 C.F.R. § 3.105 (e) apply. Reducing a rating also brings concurrent substantive requirements that must be followed. Generally, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating-re
 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 beneficiary of the final rating action expires. Id.

Here, because there was a decrease in the Veteran's combined disability rating, the due process requirements outlined in 38 C.F.R. § 3.105 (e) apply. Reducing a rating also brings concurrent substantive requirements that must be followed. Generally, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993).

A rating reduction is not proper unless a veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the regional office (RO) at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of determining whether actual improvement was demonstrated. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate the retention of the higher evaluation is warranted; rather, VA must show that the reduction was warranted. See Brown, 5 Vet. App. at 418.

In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence shows an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. The provisions of 38 C.F.R. § 3.344(a) require a review of the entire record of examinations and the medical history to ascertain whether the recent examination was full and complete. 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344(a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344(b).

In February 2023, the Veteran filed a VA Form 21-526EZ, asserting a claim for an increased rating for his healed left ankle fracture disability. Subsequently, an April 2023 rating decision granted an increased 20 percent disability rating for the Veteran's service-connected healed left ankle fracture. 

In March 2024, the Veteran filed a VA Form 21-526EZ, asserting a claim for service connection for rheumatoid arthritis. Thereafter, in May 2024, the Veteran attended a VA examination related to his claim for service connection for rheumatoid arthritis. The VA examiner completed an Ankle Conditions Disability Benefits Questionnaire (DBQ). Afterward, on August 5, 2024, the AOJ issued a rating decision denying service connection for rheumatoid arthritis. On August 21, 2024, the AOJ issued a proposed rating decision to reduce the Veteran's disability evaluation for healed left ankle fracture to 0 percent. 

In September 2024, the Veteran submitted a statement confirming that he met with a VA examiner in May 2024 but contended that at no time was his left ankle examined. See September 2024 Statement. The Veteran's wife also submitted a statement asserting that she attended the May 2024 VA examination with the Veteran, and that his left ankle was not examined during the examination. See September 2024 Z.H. Statement. 

In December 2024, the AOJ issued a rating decision reducing the rating for healed left ankle fracture to 0 percent disabling.

However, as discussed above, VA may not reduce the Veteran's disability evaluation without first finding that the service-connected disability has improved to the point that he is now better able to function under the ordinary conditions of life and
 statement confirming that he met with a VA examiner in May 2024 but contended that at no time was his left ankle examined. See September 2024 Statement. The Veteran's wife also submitted a statement asserting that she attended the May 2024 VA examination with the Veteran, and that his left ankle was not examined during the examination. See September 2024 Z.H. Statement. 

In December 2024, the AOJ issued a rating decision reducing the rating for healed left ankle fracture to 0 percent disabling.

However, as discussed above, VA may not reduce the Veteran's disability evaluation without first finding that the service-connected disability has improved to the point that he is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510 (2014); Faust, 13 Vet. App. at 349.

In the present case, it appears that the December 2024 rating reduction for the Veteran's healed left ankle fracture was based exclusively on findings made at the May 2024 VA examination. However, the record has not shown sustained improvement under the ordinary conditions of life and work. Indeed, whether there had been improvement under the ordinary conditions of life and work was not at all addressed in the December 2024 rating decision. Brown, 5 Vet. App. at 420-21. Instead, in the December 2024 rating decision, the AOJ only discussed the current clinical findings in the context of determining the appropriate assigned rating; in other words, it only addressed whether the current rating was still warranted, not whether the practical implications of the Veteran's symptoms as affecting his daily life and his employment had improved. The Veteran also has not reported improvement of his condition in any aspect; indeed, although his and his wife's statements were not of record at the time the reduction was promulgated, the Board finds them credible to, at a minimum, establish that there had been no improvement in the Veteran's conditions of daily life.

Accordingly, the Board finds that the Veteran's healed left ankle fracture had not improved to the point that he is better able to function under the ordinary conditions of life and work. This is a critical part of any rating reduction analysis. See 38 C.F.R. §§ 4.2, 4.10; Murphy, 26 Vet. App. at 517. As such, the reduction of the Veteran's disability rating effective March 1, 2025, was not proper, it is void ab initio. Restoration of the 20 percent disability rating is warranted. To that extent only, the appeal is granted.

As the rating reduction did not stem from a claim for an increased disability rating but rather occurred during the AOJ's adjudication of the Veteran's claim for service connection for rheumatoid arthritis, the issue of entitlement to a higher rating for healed left ankle fracture is not before the Board. 

 

J. Kirby

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bryan, L.

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.