concurring:
Under Akles v. Derwinski, 1 Vet.App. 118 (1991), the BVA is to apply all relevant law even though not raised by appellant. Thus, while I agree with the majority that the BVA decision must be remanded for consideration of 38 C.F.R. § 4.16(c), it is also necessary, in the event that appellant is denied a 100% rating under this provision, for the BVA to consider 38 C.F.R. § 3.327(b)(2)(ii) (1990), a regulation that appears relevant to appellant’s claim and was in effect at the time of the BVA decision.
38 C.F.R. § 3.327(b)(2) (1990) prohibits a mandatory VA reexamination in the following instance:
(b)(2) No future examinations will be requested. In service-connected cases, no reexamination will be scheduled: ... (ii) when the findings and symptoms are shown by examinations ... and hospital reports to have persisted without material improvement for a period of 5 years or more....
If this regulation is applicable in this case, a reexamination, which occurs after a claimant’s condition has existed without material improvement for at least five years and which is the basis for his reduction, is unlawful.
However, after the BVA issued its decision, the above regulation was changed, effective December 31, 1990, to read:
(a) General. Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability.... Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA’s authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated....
(b)(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: ... (ii) when the findings and symptoms are shown by examinations ... and hospital reports to have persisted without material improvement for a period of 5 years or more; ....
38 C.F.R. § 3.327(a), (b)(2) (1991) (emphasis added). Clearly the change in subsection (a), which reduces the limitation contained in subsection (b)(2)(h) of the new regulation to a mere discretionary guideline, would not preclude reexamination even where a service-connected condition has persisted for at least five years without material improvement. If the new regulation is applied to appellant, it would not bar reexamination.
Applying the rule announced in Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991) (where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, *252the version most favorable to appellant will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs to do otherwise and the Secretary did so), to the old and new versions of 38 C.F.R. § 3.327(a), (b)(2). Because there is no expression of intent to apply the new regulation retroactively and because the older regulation provides greater protection to the veteran than the new version, the old version governs this case.
The old version exempts from reexamination any service-connected veteran whose service-connected condition has persisted without material improvement for a period of five years or more. Appellant’s award of total disability, based on a 1979 examination, was initially made retroactive to April 14, 1977. A 1984 examination of appellant showed no material improvement and continued appellant’s total disability rating. Because appellant, based on these examinations, had no material improvement in his condition for over five years, the examination of February 23, 1989, here the basis for the reduction, appears to be in violation of the regulation.
Under 38 U.S.C. § 7104(a) (formerly § 4004(a)), the VA must follow its own regulations. See, e.g., Service v. Dulles, 354 U.S. 363, 387-89, 77 S.Ct. 1152, 1164-65, 1 L.Ed.2d 1403 (1957) (where substantive and procedural regulations governing employee separation from the State Department were not complied with, the termination resulting from such action was unlawful and could not stand); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990) (where a veteran’s existing disability rating was reduced on the basis of a voluntary examination that occurred in violation of an unlawfully rescinded substantive rule that provided procedural protection for the veteran, both the rescission and rating reduction were set aside and his past rating reinstated).
One final matter needs to be addressed. I am aware that it could be postulated, as the majority appears to do without analysis, that subparagraph (d) of the old version of § 3.327 permitted reexamination in this case. Title 38 C.F.R. § 3.327(d) (1990) states:
The policy as to reexaminations will not be construed as modifying in any way the right of rating agencies to request such additional medical opinions, examinations, or periods of hospital observation as may be necessary to furnish complete evidence on which rating decisions will be based.
However, in order to reconcile § 3.327(d) with § 3.327(b)(2)(h) and to give effect to both, it seems necessary to interpret § 3.327(d) to allow reexamination only where a claim, prior to reexamination, is before a rating agency for rating purposes and the agency does not have complete evidence upon which to make its decision. The VA should be prohibited under subsection (d) of the old version from “fishing” for a rating reduction based on a periodic reexamination conducted as a necessary precursor to a rating decision. Thus, where the veteran’s condition has persisted without material improvement for at least five years, the reexamination can be required by the VA only where the matter comes before the rating agency for a rating decision based on evidence independent of such reexamination.