ROGER J. SCHAFRATH, APPELLANT, V. EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

1 Vet App 5891 Vet. App. 589; 1991 US Vet App LEXIS 1271991 U.S. Vet. App. LEXIS 127

No. 89-114

November 26, 1991, Decided

UNITED STATES COURT OF VETERANS APPEALS

Before FARLEY, MANKIN, and STEINBERG, Associate Judges.

November 26, 1991, Filed

Counsel                        Roger J. Schafrath, pro se.

                        Raoul L. Carroll, then General Counsel, Barry M. Tapp, Assistant General Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Stephen A. Bergquist were on the pleadings for appellee.

Opinion

Editorial Information: Prior History

On Appeal from the Board of Veterans' Appeals and On Appellee's Motion for Summary Affirmance.

Editorial Information: Subsequent History

As Amended December 11, 1991.

Opinion by:                   STEINBERG

{1 Vet. App. 590} STEINBERG, Associate Judge: The veteran, Roger J. Schafrath, appeals the reduction of his rating for a bone spur of the right elbow from ten percent to noncompensable. The Board of Veterans' Appeals (BVA or Board) upheld the rating reduction based upon a physician's report indicating that there was no limitation of motion in the right elbow. The Board erroneously failed to apply the provisions of _CFR_4.40 38 C.F.R. § 4.40 to determine whether the appellant's compensable rating should be continued because of "functional loss" due to pain, and the provisions of other regulations requiring that the entire recorded history of the disability be considered. Hence, the BVA decision was void ab initio and it is reversed with instructions that the Board order reinstatement of the 10-percent rating. The Board also breached its statutory duty to assist the appellant in developing facts pertinent to the claim and to provide an adequate statement of reasons or bases for aspects of its decision.