United States Court of Appeals 

for the Federal Circuit ______________________ 

NORAH R. LEWIS, SR.,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________ 

2023-1298

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 21-2201, Judge Joseph L. Toth.

______________________ 

Decided: August 1, 2024

______________________ 

SEAN A. RAVIN, Miami, FL, argued for claimant-appellant.

 EVAN WISSER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.

MCCARTHY; EVAN SCOTT GRANT, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________ 

Before LOURIE, SCHALL, and TARANTO, Circuit Judges.

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2 LEWIS v. MCDONOUGH

SCHALL, Circuit Judge. 

Norah R. Lewis, Sr. appeals the December 12, 2022 decision of the United States Court of Appeals for Veterans 

Claims (“Veterans Court”) in Lewis v. McDonough, 

No. 21-2201, 2022 WL 17576398 (Vet. App. Dec. 12, 2022). 

In that decision, the Veterans Court affirmed the 

March 22, 2021 decision of the Board of Veterans’ Appeals 

(“Board”) that sustained the decision of the Department of 

Veterans Affairs (“VA”) Regional Office (“RO”) reducing 

Mr. Lewis’s disability rating for post-traumatic stress disorder (“PTSD”) from 70 percent to 30 percent. For the reasons stated below, we affirm.

BACKGROUND

I 

Mr. Lewis is a U.S. Army veteran who receives serviceconnected disability compensation for combat-related 

PTSD, due to his experiences in the Korean War. In 2009, 

the VA increased his disability rating for PTSD from 

30 percent to 70 percent. Lewis, 2022 WL 17576398, at *1. 

Subsequently, however, following a recommendation made 

in July 2015, in a rating decision dated July 21, 2016, the 

RO reduced his rating back to 30 percent. J.A. 162. In its 

decision, the RO informed Mr. Lewis that, based upon evidence from a rating decision dated July 9, 2015, a VA examination dated September 12, 2015, and VA outpatient 

treatment records dated October 2, 2015, it had determined 

that the severity of his disability most closely approximated the criteria for a 30 percent disability evaluation. 

J.A. 163. Mr. Lewis timely appealed the RO decision to the 

Board.

The Board issued a decision on Mr. Lewis’s appeal in 

April of 2018, sustaining the RO’s decision. The Board’s

decision was vacated by the Veterans Court, however, and 

the case remanded to the Board, after Mr. Lewis and the 

VA Secretary (“Secretary”) agreed that the Board needed 

to issue a new decision because it had failed to address material evidence favorable to Mr. Lewis. Lewis, 2022 WL 

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LEWIS v. MCDONOUGH 3

17576398, at *1. In November of 2019, the Board issued a 

second decision. After Mr. Lewis again appealed to the 

Veterans Court, though, the court again granted the parties’ joint motion to vacate and remand, this time because 

the Board had failed to comply with the prior remand order. Id.

II

On remand to the Board for the second time, Mr. Lewis 

raised an argument that he had not previously presented. 

He contended that the July 2016 rating decision implementing the reduction in his disability compensation from 

70 percent to 30 percent was void ab initio. Id. According 

to Mr. Lewis, this was so because, when the RO found improvement in his condition and reduced his compensation, 

it had failed to make a finding required by 38 C.F.R. 

§ 3.344(a). Section 3.344(a) provides that, for ratings that 

have remained unchanged for five years or more, “though 

material improvement in the physical or mental condition 

is clearly reflected[,] the rating agency will consider 

whether the evidence makes it reasonably certain that the 

improvement will be maintained under the ordinary conditions of life.” 38 C.F.R. § 3.344(a); see also id. § 3.344(c)

(indicating that § 3.344(a) applies to “ratings which have 

continued for long periods at the same level (5 years or 

more)” and not “disabilities which have not become stabilized and are likely to improve”); Hanser v. McDonough, 

56 F.4th 967, 971 (Fed. Cir. 2022) (interpreting the parenthetical phrase “(5 years or more)” in § 3.344(c) to be definitional). Mr. Lewis concluded his argument to the Board 

on the July 2016 rating reduction with the following statement:

[T]he question before the Board is not whether Mr. 

Lewis’[s] PTSD has improved or whether any purported improvement would be sustained under the 

ordinary conditions of life. Rather, the question before the Board is whether the [RO], in its July 2016 

decision reducing benefits made a finding that any 

purported improvement would be sustained under 

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4 LEWIS v. MCDONOUGH

the ordinary conditions of life. Here, it is clear that 

the [RO] made no such finding, and nothing in its 

decision could be reasonably read as such a finding. 

Because of this, regardless of the relative merit one 

may ascribe to a finding of improvement in 

Mr. Lewis’[s] condition, because the [RO] did not 

make the required finding, its decision is void ab 

initio and must be reversed. Once benefits are restored, the VA remains free to initiate new proceedings aimed at reducing Mr. Lewis’[s] benefits, but 

it must do so within the confines of the strict procedural safeguards that have been established in 

law.

J.A. 47.

In its March 2021 decision, the Board began by stating 

that the record showed that Mr. Lewis’s PTSD “materially 

improved under the ordinary conditions of life so as to warrant a reduction from 70 percent to 30 percent for [his] service-connected disability.” J.A. 21. Next, the Board 

examined and summarized the October 2009 private examination that led to Mr. Lewis’s 70 precent rating and the 

seven medical examinations of Mr. Lewis that were conducted by the VA thereafter in April 2011, September 2011, 

December 2014, May 2015, September 2015, November 

2015, and April 2016. J.A. 22–26. Stating that the issue 

before it was whether the RO was proper in reducing Mr. 

Lewis’s evaluation at the time the RO proposed to reduce 

the evaluation in July 2015 and at the time the RO reduced 

the evaluation in July 2016, the Board found that the record of multiple VA examinations and VA treatment records 

from 2011 to 2016 showed improvement in Mr. Lewis’s condition. The Board concluded:

Thus, by the time of the April 2016 VA examination, the improved symptoms had been shown for 

five years, which the Board finds is indicative of 

sustained improvement under the ordinary conditions of life, as the improved symptoms were maintained during this five-year period of time, which 

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LEWIS v. MCDONOUGH 5

the Board finds would be indicative of a disability 

being maintained under the ordinary conditions of 

life.

J.A. 32–33.

Accordingly, the Board found that the disability rating 

reduction to 30 percent, which was effectuated by the rating decision of July 2016, was in accordance with the requirements of 38 C.F.R. § 3.344(a). It therefore refused to 

restore the 70 percent evaluation. J.A. 33.

III 

On appeal to the Veterans Court, Mr. Lewis repeated 

the argument that he had made to the Board—that the 

July 2016 rating decision was procedurally deficient. Mr. 

Lewis stated: “Although the [RO] found that Mr. Lewis’s 

condition had improved, it did not find, as required by 

[38 C.F.R.] § 3.344(a) that there had been ‘material improvement’ that was ‘reasonably certain . . . [to] be maintained under the ordinary conditions of life.’” J.A. 425

(third alteration in original). 

The Veterans Court rejected Mr. Lewis’s argument and 

affirmed the decision of the Board. The court stated that 

“[n]othing in the text of § 3.344 suggests that the RO has a 

requirement to issue certain findings in reduction cases.” 

Lewis, 2022 WL 17576398, at *2. The court explained that 

§ 3.344 “guides the Agency as to how to approach a rating 

reduction case,” in that it tells the VA what to review in the 

record, limits the types of evidence it may use in making a 

decision and provides for certain considerations to be taken 

into account (“whether the evidence makes it reasonably 

certain that the improvement will be maintained under the 

ordinary conditions of life”). Id. “But,” the court stated, 

“there is no language in § 3.344 commanding the RO to issue those findings first lest the reduction have no effect.” 

Id. Finding that the Board had made the required findings 

in its decision, the Veterans Court affirmed the Board’s decision. Id. at *3. Mr. Lewis timely appealed.

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6 LEWIS v. MCDONOUGH

DISCUSSION

I 

On appeal, as he did before the Board and the Veterans 

Court, Mr. Lewis argues that the July 2016 rating decision 

was void ab initio. Mr. Lewis posits that the plain language of 38 C.F.R. § 3.344 makes it clear that a rating decision in effect for five or more years at the same level, like 

his 70 percent rating, can only be reduced if certain procedural safeguards are met. Among these and relevant to 

this case, he states, is the requirement of 38 C.F.R. § 3.344 

that a “rating agency will consider whether the evidence 

makes it reasonably certain that the improvement will be 

maintained under the ordinary conditions of life.” Appellant’s Br. 15 (quoting 38 C.F.R. § 3.344(a) (emphasis 

added)).1 Mr. Lewis continues that the plain language of 

the regulation requires that the rating agency “will consider,” and that consideration can only be demonstrated by 

making the necessary finding in a rating decision. “Requiring that the rating agency consider a factor without requiring that agency to make that finding on the record would 

render the regulatory command meaningless.” Id. In making this argument, Mr. Lewis relies on Brown v. Brown, 

5 Vet. App. 413, 417–19, 421–22 (1993), and Stern v. 

McDonough, 34 Vet. App. 51, 59 (2021), which he argues 

stand for the proposition that an RO decision can be 

1 It is undisputed that the term “rating agency” in 

38 C.F.R. § 3.344 refers to a VA regional office. See

38 C.F.R. § 3.104(a) (“A decision of a VA rating agency is 

binding on all VA field offices as to conclusions based on 

the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. [§] 5104. A binding 

agency decision is not subject to revision except by the 

Board of Veterans’ Appeals, by Federal court order, or as 

provided in §§ 3.105, 3.2500, and 3.2600.”); see also Oral 

arg. at 15:02–16:00 (May 8, 2024) (counsel for the government acknowledging that “rating agency” refers to the RO). 

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LEWIS v. MCDONOUGH 7

rendered void ab initio for failure to make specific findings 

pursuant to 38 C.F.R. § 3.344.

The Secretary argues that nothing in the text of § 3.344 

or any related regulation requires that a rating decision be 

based exclusively on statements in the RO’s decision without reference to the Board’s subsequent findings and decision. The Secretary acknowledges that 38 C.F.R. § 3.105(e) 

requires that a rating decision reducing a disability evaluation for a service-connected disability set forth “all material facts and reasons” and that the VA notify the veteran 

of the proposed reduction in evaluation. The Secretary also 

acknowledges that § 3.344 sets forth certain requirements 

regarding stabilization of disability evaluations. The Secretary states, however, that “Mr. Lewis cites no authority 

suggesting that, if the RO’s proposed notice and reduction 

decision are deficient, a subsequent decision by the [B]oard 

that affirms the reduction and provides adequate reasons 

and bases would not be sufficient to cure such a defect.” 

Appellee’s Br. 11. The Secretary therefore urges us to affirm the decision of the Board.

II

Our jurisdiction to review decisions of the Veterans 

Court is limited. We may review the validity of a decision

with respect to a rule of law or interpretation of a statute 

or regulation that was relied upon by the Veterans Court

in making its decision. 38 U.S.C. § 7292(a). However, except with respect to constitutional issues, we may not review challenges to factual determinations or challenges to 

the application of a law or regulation to the facts of a case. 

Id. § 7292(d)(2). In reviewing a Veterans Court decision, 

we decide “all relevant questions of law, including interpreting constitutional and statutory provisions,” and we 

set aside any interpretation thereof “other than a determination as to a factual matter” relied upon by the Veterans 

Court that we find to be “(A) arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law; 

(B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or 

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8 LEWIS v. MCDONOUGH

limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id.

§ 7292(d)(1). 

We have jurisdiction over Mr. Lewis’s appeal because 

it raises an issue of regulatory interpretation. We review 

questions of regulatory interpretation de novo. Cavaciuti 

v. McDonough, 75 F.4th 1363, 1366 (Fed. Cir. 2023). 

III

Two regulations are at issue in this case. The first is 

38 C.F.R. § 3.105(e). It provides in relevant part as follows:

Where the reduction in evaluation of a service-connected disability or employability status 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.

The second regulation at issue is 38 C.F.R. § 3.344(a). 

It sets forth certain requirements that must be met before 

the VA reduces a disability rating. As noted above, as relevant to this appeal, § 3.344(a) states that “though material improvement in the physical or mental condition is 

clearly reflected[,] the rating agency will consider whether 

the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of 

life.” 38 C.F.R. § 3.344(a). 

Thus, in its decision reducing Mr. Lewis’s disability 

rating for PTSD from 70 percent to 30 percent, pursuant to 

§ 3.105(e) the RO was required to set forth “all material 

facts and reasons” for the reduction. See Breland v. 

McDonough, 22 F.4th 1347, 1352 (Fed. Cir. 2022) (“Section 

3.105(e) plainly states that prior to implementing a disability rating reduction that would ‘result in a reduction or 

discontinuance of compensation payments currently being 

made,’ all material facts and reasons for such a reduction 

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LEWIS v. MCDONOUGH 9

must be laid out.”) (quoting 38 C.F.R. § 3.105(e)). This included “all material facts and reasons” bearing on the requirement in § 3.344(a) that the VA “consider” whether the 

improvement it had found in Mr. Lewis’s condition would 

be “maintained under the ordinary conditions of life.” It is 

undisputed that, in its July 2016 rating decision, the RO 

failed to state any “facts and reasons” bearing upon the 

question whether the improvement in Mr. Lewis’s condition that it had found would “be maintained under the ordinary conditions of life.” As seen, it is for this reason that 

Mr. Lewis argues that the decision of the RO was void ab 

initio and that his 70 percent rating should be reinstated, 

effective the date it was reduced.

We do not agree. While it is undisputed that the RO 

failed to make the findings required by § 3.105(e), it also is 

undisputed that, in its March 2021 decision, the Board did 

make those findings. Then, as set forth in Part II of the 

BACKGROUND section above, the Board’s decision examined 

at length the record of Mr. Lewis’s pertinent medical history, beginning in 2009 and continuing through 2016. And 

based upon that examination, the Board found that the 

RO’s reduction of Mr. Lewis’s disability rating was fully 

supported by the record. And, the Board also found that 

the fact that Mr. Lewis’s improved symptoms were maintained during the relevant five-year period of time was “indicative of a disability being maintained under the 

ordinary conditions of life.” J.A. 32–33. Indeed, at oral argument, counsel for Mr. Lewis acknowledged that if the RO 

had made the findings the Board did, Mr. Lewis would not 

have asserted that the July 2016 RO decision was void ab 

initio. Oral arg. 5:12–40 (May 8, 2024) (“If you cede that 

the Board’s decision contained all that information . . . and 

the rating decision did not contain that information . . . if 

you were to switch them then you might find . . . or believe 

that that rating decision shouldn’t be void ab initio because 

it complies with all the requirements of 3.105(e) and 

3.344(a).”). 

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10 LEWIS v. MCDONOUGH

Contrary to Mr. Lewis’s argument, Brown and Stern do 

not broadly stand for the proposition that an RO decision 

is rendered void because of the RO’s failure to make findings under § 3.105(e) and § 3.344. In Brown, the Veterans 

Court held that the Board’s decision failed to comply with 

the requirements of § 3.344(a) and other regulations applicable to rating reductions. 5 Vet. App. at 419–20. In that

case, the Board had also erred by requiring, in a reversal 

of the burden of proof, that the veteran prove by a preponderance of evidence that he was entitled to an unreduced 

rating. Id. at 421–22. Accordingly, the Veterans Court set 

aside the Board’s decision reducing the veteran’s rating as 

“not in accordance with law.” Id. at 422. In Stern, the Veterans Court reversed the Board’s decision and reinstated 

an original disability rating where, similar to Brown, the 

Board had failed to make a finding necessary for the lawful 

reduction of a disability rating. 34 Vet. App. at 59. In doing so, the Court discussed the role of the regulations pertaining to rating reductions, stating:

[T]he Court has held that reversal and reinstatement is the appropriate remedy where VA has not

provided the procedural protections afforded in 

§ 3.105(e), because failure to afford notice and an 

opportunity to present additional evidence as outlined in that regulation “deprive[s a veteran] of the 

regulatory process that VA created to help veterans

adjust to a reduction in disability compensation

payments and to submit evidence or argument to 

contest such an action.” 

Id. at 56 (quoting Murphy v. Shinseki, 26 Vet. App. 510, 

516 (2014)). Thus, as the Veterans Court correctly observed in Mr. Lewis’s case, “Brown held, and Stern reaffirmed, that, if the Board fails to make the required 

findings under § 3.344, the [RO’s] reduction is void ab initio.” Lewis, 2022 WL 17576398, at *3. In short, neither 

Brown nor Stern held that the Board’s findings cannot cure 

a deficiency in an RO decision. 

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LEWIS v. MCDONOUGH 11

The Board is an appellate body within the VA that has 

jurisdiction under 38 U.S.C. § 7104 to review decisions 

made under 38 U.S.C. § 511(a). Disabled Am. Vets. v. Sec’y 

of Vets. Affs., 327 F.3d 1339, 1346 (Fed. Cir. 2003). As we 

have explained, “[t]ogether, §§ 511(a) and 7104(a) dictate 

that the Board acts on behalf of the Secretary in making 

the ultimate decision on claims and provides ‘one review on 

appeal to the Secretary’ of a question ‘subject to decision by 

the Secretary’ under § 511(a).” Id. at 1347. The Board conducts de novo review of RO proceedings based on the entire 

record. Disabled Am. Vets. v. Sec’y of Vets. Affs., 419 F.3d 

1317, 1319 (Fed. Cir. 2005) (first citing 38 U.S.C. § 7104(a); 

and then citing Donovan v. West, 158 F.3d 1377, 1381 (Fed. 

Cir. 1998)). Accordingly, what the Board did here was fully 

consistent with the role assigned to it in the statutory 

scheme and as required by the pertinent regulations: it 

made the ultimate decision regarding Mr. Lewis’s disability rating based on the entire record and taking into account the requirements of § 3.105(e) and § 3.344(a). In 

doing so, it satisfied the VA’s duty to follow the procedural 

protections in place for ratings reductions.

CONCLUSION

For the foregoing reasons, we affirm the decision of the 

Veterans Court affirming the decision of the Board.

AFFIRMED

COSTS

No costs.

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