Citation Nr: 0813448 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 03-16 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether the reduction from 20 percent to 10 percent for service-connected residuals of a right knee injury was proper. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow, Associate Counsel INTRODUCTION The veteran had active military service from February 1965 to July 1965. He had verified periods of inactive duty for training with the Army National Guard from April 15 to April 16, 1972, and from May 4 to May 5, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. By rating action issued on October 28, 2002, the disability rating for the veteran's right knee disability was reduced to 10 percent effective December 1, 2002. 2. The RO has not complied with 38 C.F.R. § 3.105 in executing the reduction of the disability rating for the service-connected right knee disability from 20 percent to 10 percent as the effective date assigned was not at least 60 days from the date of notice of the reduction. CONCLUSION OF LAW The reduction in the rating of the veteran's right knee disability to 10 percent, effective December 1, 2002, was not proper. 38 U.S.C.A. § 1155, 5112 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344, 4.115a and 4.115b, Diagnostic Code 7528 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 38 C.F.R. § 3.105(e) (2007); see also 38 U.S.C.A. § 5112(b)(6) (West 2002). In May 2002, the RO notified the veteran that it proposed to reduce the 20 percent evaluation assigned for his service- connected right knee disability to 10 percent, and advised the veteran he had 60 days to submit additional evidence or to request a hearing. The veteran submitted additional information in addition to requesting a hearing. The hearing was held at the RO in August 2002. Where, as here, the veteran submits additional evidence and a predetermination hearing is held, a written notice of the final action shall be issued to the beneficiary and his or her representative, setting forth the reasons therefore and the evidence upon which it is based. Where a reduction of benefits is found warranted following consideration of any additional evidence submitted, the effective date of such reduction shall be the last day of the month in which a 60- day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2)(i) (2007). By letter dated October 28, 2002, the RO notified the veteran that it was reducing his disability rating for his service- connected right knee disability from 20 percent to 10 percent based upon the evidence of record. The effective date of the reduction was December 1, 2002. The Board finds that the effective date of the notice is noncompliant with the requirements in 38 C.F.R. § 3.105(i)(2)(i). The effective date of the reduction was only 33 days after notice was given to the veteran, less than the 60 days required by the regulations. The Board notes that the rating decision setting forth the reasons for the reduction and establishing the effective date of December 1, 2002, was actually dated September 27, 2002. Had notice of the rating action been promptly issued, the assigned effective date would have complied with the regulatory requirements. However, because notice of the reduction was not sent until a month later, the effective date assigned in the rating decision did not afford the appropriate time period before the reduction took effect. Because the RO failed to comply with the notice provisions of 38 C.F.R. § 3.105, the reduction of the veteran's disability rating for his right knee disability is void ab initio. The Court of Appeals for Veterans Claims has consistently held that, where a RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Kitchens v. Brown, 7 Vet.App. 320, 325 (1995); Murincsak v. Derwinski, 2 Vet.App. 363, 369 (1992); Schafrath, 1 Vet.App. at 596 (1991). The veteran's appeal is, therefore, granted. ORDER The reduction from 20 percent to 10 percent for the veteran's service-connected residuals of a right knee injury was not proper, and the 20 percent rating is restored. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs