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Department of Veterans Affairs Regional Office in No. LittleRock, Arkansas

THE ISSUE

Entitlement to restoration of a 60 percent evaluation forresiduals of lumbar strain with degenerative disc disease andresiduals of thoracic strain.

REPRESENTATION

Appellant represented by: Virginia A. Girard-Brady,Attorney at Law

ATTORNEY FOR THE BOARD

Eric S. Leboff, Counsel

INTRODUCTION

The veteran had active service from July 1968 until July1984.

This matter comes before the Board of Veterans' Appeals (BVAor Board) from a rating decision of the Department ofVeterans Affairs (VA), Regional Office (RO) in North LittleRock, Arkansas.

The veteran had previously been represented in this matter byBarbara Scott Girard, Attorney at Law. However, in a June2006 letter from VA, the veteran was advised that Ms. ScottGirard could no longer represent him in his appeal. He was apprised of his options and ultimately he obtained newrepresentation. A VA Form 21-22a dated in November 2005 indicates that Virginia A. Girard-Brady was authorized torepresent the veteran in this appeal.

There was some ambiguity in the record regarding whether theveteran wished to appear at a hearing before a Veterans LawJudge. However, this question was clarified by a March 2008submission from the veteran's accredited representative. The March 2008 communication clearly indicated that the veterandid not wish to participate in a hearing and requested thatthe appeal be transferred to the Board as soon as possible.

In June 2004, the issue of whether a timely notice ofdisagreement (NOD) had been submitted with respect to a claimof entitlement to restoration of a 60 percent evaluation forthe veteran's residuals of lumbar strain with degenerativedisc disease and residuals of thoracic strain. The Board determined that a timely had not been submitted.

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The veteran appealed that decision to the United States Courtof Appeals for Veterans Claims (Court). In a February 2005Order, the Court vacated the June 2004 Board decision andremanded the matter back to the Board for developmentconsistent with the parties' Joint Motion to Vacate andRemand (Joint Motion).

The matter returned to the Board in August 2005. At that time, the veteran's NOD was found to be timely. The Board then remanded the underlying claim of entitlement torestoration of a 60 percent rating evaluation for residualsof lumbar strain with degenerative disc disease and residualsof thoracic strain.

FINDINGS OF FACT

1. Since November 1991, the veteran has been in receipt ofbenefits from the Office of Workers Compensation Program(OWCP) for lumbosacral strain incurred in 1990.
2. In June 2000, the RO proposed a reduction of theveteran's 60 percent rating forresiduals of lumbar strain with degenerative disc disease andresiduals of thoracic strain, which had been in effect since1990; it was proposed that the 60 percent rating be reducedto 20 percent.
3. In September 2000, the proposed reduction wasimplemented.
4. The veteran's disability evaluation from VA contemplatesall aspects of his lumbar/thoracic disability, includingmuscle spasm, limited motion, and sciatic symptoms.

CONCLUSION OF LAW

The reduction in the veteran's disability evaluation from 60percent to 20 percent for residuals of lumbar strain withdegenerative disc disease and residuals of thoracic strainwas proper and the requirements for restoration andrecoupment have not been satisfied. 38 U.S.C.A. §§ 1155,5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.159,

3.708 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is claiming entitlement to restoration of a 60percent evaluation for residuals of lumbar strain withdegenerative disc disease and residuals of thoracic strain.

A review of the claims folder shows that effective November 1990, the veteran was in receipt of a 60 percent evaluationfor residuals of lumbar strain with degenerative disc diseaseand residuals of thoracic strain. Prior to that time, a 20percent rating was in effect.

In January 2000, the veteran submitted a VA Form 21-4192,indicating that he was receiving disability benefits fromOWCP on an injury sustained in September 1990. He beganreceiving OWC compensation in November 1991.

Where a veteran is entitled to compensation from the OWCP

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based on civilian employment and is also entitled tocompensation under laws administered by the VA for the samedisability, he must elect which benefit he will receive.38 C.F.R. § 3.708(a). On or after September 13, 1960, anaward of VA benefits cannot be approved for payment ofcompensation concurrently with compensation from OWCP and, insuch instances, an election to receive benefits from eitheragency is final. There is no right of reelection. 38 C.F.R. §3.708(b)(1).

There is no prohibition against payment of benefits under theFederal Employees' Compensation Act (FECA) concurrently withother benefits administered by VA when such benefits are notbased on the same disability. 38 C.F.R. § 3.708(b)(2).

A June 2001 letter from the U. S. Department of Labor, OWCP,indicated that the veteran was receiving compensation forlumbosacral strain. Once the RO became aware that the veteran was concurrently receiving benefits both from VA andfrom OWCP for a back disability, a letter was issuedproposing a reduction in his benefits from the 60 percentrate to the 20 percent rate, effective November 1991. He was given 60 days to submit evidence in response to thatproposal, but did not do so.

In a September 2000 letter, the RO indicated that theadjustment in the veteran's VA benefits had been implemented,effective November 1991, as set forth in the prior proposal.While there is now a question whether this action wasactually a reduction, the Board notes that it was styled assuch by the RO and the veteran was, in fact, informed thathis disability was being reduced.

The Board notes that the retroactive adjustment of theveteran's VA benefits created an overpayment in the amount of$69,706.90. It is noted that a November 2001 decision of the Committee on Waivers and Compromises granted entitlement to awaiver of overpayment. Therefore, this issue is not forconsideration in the present appeal. The sole question forconsideration is whether the veteran's 60 percent ratingshould be restored.

The Board will first consider whether the reduction implemented by the RO was appropriately carried out. In this regard, it is noted that, before an evaluation for a service-connected disability may be reduced or discontinued, theprocedural requirements of 38 C.F.R. § 3.105(e) must besatisfied.

Specifically, 38 C.F.R. § 3.105(e) provides that a ratingproposing the reduction or discontinuance must be prepared,setting forth all material facts and reasons for the action.Additionally, the RO must advise the veteran of the proposedrating reduction or discontinuance and afford 60 days inwhich to present additional evidence showing thatcompensation should be continued at the present evaluationlevel. Id. If such additional evidence is not received within the 60-day period, the RO is to take final ratingaction and the award is to be reduced or discontinued as set forth in the proposal. Id.

Based on the facts as previously set forth, the Boardconcludes that the procedural requirements regarding propernotification of a proposed rating reduction, as outlined in38 C.F.R. § 3.105(e), were satisfied here. Therefore, the

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reduction ordered in the September 2000 letter determinationis not deemed improper on the basis of deficient notice.

Further regarding rating reductions, the law provides that,when a rating has continued for a long period at the samelevel (5 years or more), any rating reduction must be basedon an examination that is as complete as the examinationsthat formed the basis for the original rating and that thecondition not be likely to return to its previous level. 38

C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App.320, 324 (1995).

A reduction may be accomplished when the rating agencydetermines that evidence makes it reasonably certain that theimprovement will be maintained under the ordinary conditionsof life. 38 C.F.R. § 3.344(a). However, where a rating hasbeen in effect for less than five years, the regulatoryrequirements under 38 C.F.R. § 3.344(a) and (b) areinapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases 38 C.F.R. § 3.344 (c) states that reexaminationdisclosing improvement will warrant reduction in rating.

The Board finds that the provisions of 38 C.F.R. § 3.344 areinapplicable in the instant case. Indeed, such provisionscontemplate a situation in which a disability evaluation isreduced due to an improvement in the veteran's medicalcondition. Here, the basis for the reduction is simply that,as a matter of law, the veteran was not entitled to receiveconcurrent benefits from VA and OWCP.

Again, it is not VA's position that the veteran's backsymptoms have improved. Rather, it is acknowledged that hisdisability picture worsened, as indicated by the increase inhis evaluation from 20 percent to 60 percent beginning in1991. However, such worsened symptoms were already accountedfor in the payments received from OWCP. Accordingly, theincrease in the veteran's disability rating from VAcontemplated that same worsening and thus resulted inprohibited concurrent payments.

The veteran contends that the benefits he is receiving fromOWCP relate to lumbar strain, whereas his VA benefitscontemplate disc disease. Therefore, he asserts, he shouldbe entitled to full payment from both sources.

In acknowledging the veteran's argument, the Board againnotes that there is no prohibition against payment ofbenefits under OWCP concurrently with other benefitsadministered by VA when such benefits are not based on thesame disability. 38 C.F.R. § 3.708(b)(2) (emphasis added).However, the Board is not persuaded by the veteran'scontentions.

Indeed, the rating sheets issued by the RO clearly indicatethat he is service-connected for residuals of lumbar strain with degenerative disc disease and residuals of thoracicstrain. Thus, both OWCP and VA have taken the veteran'slumbar strain into account in factoring his disabilitypayments.

Moreover, a review of the rating decisions in the claims fileclearly show that all lumbar/thoracic symptomatology wasconsidered by VA in determining the veteran's ratingpercentage. For example, in an April 2000 rating action, theRO considered range of motion, muscle spasm, and sciatic

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symptomatology in rating the lumbar/thoracic disability.Because all facets of a back disability were considered inthe VA rating, it logically follows that his benefits fromOWCP are based on overlapping findings.

In sum, the veteran received proper notice as to the proposedreduction of the veteran's disability evaluation forresiduals of lumbar strain with degenerative disc disease andresiduals of thoracic strain from 60 to 20 percent disabling.Moreover, as the evidence reveals that he was concurrentlyreceiving OWCP benefits for the same symptomatology, there isno basis for restoration of the 60 percent rating. As the preponderance of the evidence is against the claim, thebenefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56(1990).

Finally, as provided for by the Veterans Claims AssistanceAct of 2000 (VCAA), VA has a duty to notify and assistclaimants in substantiating a claim for VA benefits.38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and3.326(a) (2007).

Proper notice from VA must inform the claimant of anyinformation and medical or lay evidence not of record (1)that is necessary to substantiate the claim; (2) that VA willseek to provide; (3) that the claimant is expected toprovide; and (4) must ask the claimant to provide anyevidence in her or his possession that pertains to the claimin accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v.Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claimby the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In addition, the notice requirements of the VCAA apply to allfive elements of a service-connection claim, including: (1)veteran status; (2) existence of a disability; (3) aconnection between the veteran's service and the disability;

(4) degree of disability; and (5) effective date of thedisability. See Dingess/Hartman v. Nicholson, 19 Vet. App.473 (2006). Further, this notice must include informationthat a disability rating and an effective date for the awardof benefits will be assigned if service connection isawarded. Id. at 486.

VCAA notice errors are presumed prejudicial unless VA showsthat the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error,VA must show (1) that any defect was cured by actualknowledge on the part of the claimant; (2) that a reasonableperson could be expected to understand from the notice whatwas needed; or, (3) that a benefit could not have beenawarded as a matter of law. See Sanders v. Nicholson, 487F.3d 881 (Fed. Cir. 2007).

Here, the VCAA duty to notify was satisfied by way of aletter sent to the veteran in May 2001 that fully addressedall four notice elements and was sent prior to the initial ROdecision in this matter. The letter informed him of what evidence was required to substantiate the claim and of hisand VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in hispossession to the RO.

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There is no allegation from the veteran that he has anyevidence in his possession that is needed for full and fairadjudication of this claim. Under these circumstances, theBoard finds that the notification requirements of the VCAAhave been satisfied as to both timing and content.

Based on the foregoing, adequate notice was provided to theveteran prior to the transfer and certification of his caseto the Board and complied with the requirements of 38 U.S.C.§ 5103(a) and 38 C.F.R. § 3.159(b).

Next, VA has a duty to assist the veteran in the developmentof the claim. This duty includes assisting him in theprocurement of service medical records and pertinenttreatment records and providing an examination whennecessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has beenaccomplished, and therefore appellate review may proceedwithout prejudice to the appellant. See Bernard v. Brown, 4Vet. App. 384 (1993). The claims file contains the veteran's post-service reports of VA and private treatment andexamination. Moreover, the veteran's statements in supportof his claim are of record.

The Board has carefully reviewed such statements andconcludes that he has not identified further evidence not already of record. The Board has also perused the medicalrecords for references to additional treatment reports not ofrecord, but has found nothing to suggest that there is anyoutstanding evidence with respect to the veteran's claim.

For the above reasons, no further notice or assistance to theveteran is required to fulfill VA's duty to assist in thedevelopment of the claim. Smith v. Gober, 14 Vet. App. 227(2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.Principi, 16 Vet. App. 183 (2002).

ORDER

Restoration of a 60 percent evaluation for residuals oflumbar strain with degenerative disc disease and residuals ofthoracic strain is denied.

L. HOWELL Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs