ELBOW IMPAIRMENT OF

JENNIFER WHITE · 2026 · Case ID: A26040566

GRANTED

Summary

The veteran, who served from June 1971 to June 1991, appeals a rating reduction for his right elbow condition. The Department of Veterans Affairs Regional Office (RO) reduced the disability rating for limitation of supination and pronation, right elbow, with degenerative arthritis (other than post-traumatic) and tendinitis, from 20 percent to 10 percent, effective May 5, 2025. The veteran contended this reduction was improper. The Board of Veterans' Appeals (Board) reviewed the case based on the evidence of record at the time of the RO's decision, as the veteran withdrew his hearing request. The Board noted that the 20 percent rating had been in effect for less than five years, meaning the heightened standards for reduction under 38 C.F.R. § 3.344(a) and (b) did not apply. The Board found that the evidence was in equipoise regarding whether sustained improvement had been demonstrated. The veteran reported persistent symptoms including swelling, stiffness, pain, and loss of range of motion, limiting his ability to lift, grip, push, or pull. The Board concluded that the RO's reduction was improper because the evidence did not clearly warrant the change. Consequently, the Board granted the restoration of the 20 percent disability rating, effective May 5, 2025.

Rationale

Evidence found to be in equipoise regarding sustained improvement.; Reduction from 20% to 10% deemed improper.; Restoration of 20% rating granted.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250910-573937

Full Decision Text

Citation Nr: A26040566
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250910-573937
DATE: April 30, 2026

ORDER

The reduction of the rating for limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis, from 20 percent disabling to 10 percent effective May 5, 2025, was improper; therefore, restoration of the 20 percent rating is granted effective May 5, 2025.

FINDING OF FACT

The evidence is in equipoise regarding whether the Veteran's limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis improved such that improvement is shown in his ability to function under ordinary conditions of life and work.

CONCLUSION OF LAW

The reduction of the rating for limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis, from 20 percent to 10 percent effective May 5, 2025 was improper; therefore, restoration of the 20 percent rating is granted effective May 5, 2025. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran has confirmed service from June 1971 to June 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Board notes that the Veteran's attorney specifically indicated that the issue on appeal should be the "limitation of supination and pronation, right elbow, with degenerative arthritis other than post-traumatic, and tendinitis." Thus, the Board proceeds with the adjudication of this issue. On December 17, 2025, the Veteran withdrew the hearing request.

Therefore, the Board may only consider the evidence of record at the time of the May 2025 agency of original jurisdiction (AOJ) rating decision on appeal, as well as any evidence submitted by the Veteran [or representative] within 90 days following receipt of the withdrawal of the hearing request. 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 receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

Legal Criteria - Rating Reduction Claims

When the propriety of a rating reduction is at issue, the focus is on the actions of the Regional Office (RO) in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993).

The criteria governing certain rating reductions for certain service-connected disabilities are found under 38 C.F.R. § 3.344. If a disability rating has been continued at the same level for long periods, i.e., five years or more, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued, and only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. 38 C.F.R. § 3.344 (a). If doubt remains after consideration is given to all the evidence, then the rating in effect will be continued. 38 C.F.R. § 3.344 (b).

When a disability has not become stable and is likely to improve
disabilities are found under 38 C.F.R. § 3.344. If a disability rating has been continued at the same level for long periods, i.e., five years or more, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued, and only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction. 38 C.F.R. § 3.344 (a). If doubt remains after consideration is given to all the evidence, then the rating in effect will be continued. 38 C.F.R. § 3.344 (b).

When a disability has not become stable and is likely to improve, and the disability rating has not continued at the same level for at least five years, a reexamination disclosing improvement in that disability will warrant a reduction in its rating. 38 C.F.R. § 3.344 (c). The duration of the disability rating at issue is measured by the effective date assigned for that rating until the effective date of the actual rating. Brown v. Brown, 5 Vet. App. 413, 418 (1993).

A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.§ 1155; Greyzck v. West, 12 Vet. App. 288, 292 (1999) (including cases cited therein). Not only must it be determined that an improvement in a disability has occurred, but it must also be shown that the improvement reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Factual Background & Analysis

In a May 2025 rating decision, the AOJ reduced the Veteran's limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis, from 20 percent disabling to 10 percent effective May 5, 2025. The Veteran contends that the rating reduction was improper, and that restoration of the rating is warranted.

The central question when dealing with any rating reduction claim is whether the disability has improved, such that there is an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

Pursuant to VA regulation, if a disability rating has been continued at the same level for five years or more, VA may not reduce the evaluation based on examinations less full and complete than those on which payments were authorized or continued. 38 C.F.R. § 3.344(a). Further, if the disease is subject to temporary or episodic improvement, reduction may not be based on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. If doubt remains after consideration is given to all evidence, then the rating in effect will be continued. 38 C.F.R. § 3.344(b).

The Court of Appeals for Veterans Claims (Court) has identified general regulatory requirements which are applicable to all rating reductions and found that VA regulations impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. See Brown, 5 Vet. App. at 420; see also 38 C.F.R. §§ 4.1, 4.2, 4.10. Further, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work; the burden of proof is on the VA to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 420-24. In general, the AOJ's reduction of a rating must have been supported by the evidence on file at the time of the reduction; pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App.
of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work; the burden of proof is on the VA to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 420-24. In general, the AOJ's reduction of a rating must have been supported by the evidence on file at the time of the reduction; pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992).

As an initial matter, the Board notes that the rating reduction did not result in a net decrease to the Veteran's combined overall disability compensation. As such, the procedural requirements of 38 C.F.R. § 3.105 (e) do not apply.

The Board further notes that the Veteran's 20 percent disability rating for his limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis disability was effective March 23, 2023, or less than 5 years prior to reduction. As such, the heightened standard for reductions delineated in 38 C.F.R. § 3.344 (a) and (b) are not applicable.

In the May 2025 rating decision, the AOJ reduced the rating for the Veteran's limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis, apparently based exclusively on findings made at the May 2025 VA examination, but the Board finds the evidence is in equipoise regarding whether sustained improvement has been demonstrated. See 38 C.F.R. § 3.344(a). At the May 2025 VA examination, the Veteran reported that his right elbow symptoms remain the same and consist of swelling, stiffness, pain, and loss of range of motion. The Veteran further reported that he is currently limited in his ability to lift, grip, push, or pull objects for longer durations of time.

Thus, the Board finds the reduction of the rating for limitation of supination and pronation, right elbow, with degenerative arthritis, other than post-traumatic, and tendinitis, from 20 percent disabling to 10 percent effective May 5, 2025, was improper, and therefore, must be restored.

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Prevost, K.

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.

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