Citation Nr: 1330201 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-01 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Propriety of the termination, and entitlement to restoration of, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period from October 1, 2008 to October 19, 2009. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1979 to July 1983 and from February 1984 to June 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Roanoke, Virginia RO. In August 2011, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In September 2011, the Veteran submitted pertinent evidence without a waiver of initial RO consideration. However, in light of the favorable decision below, the Veteran is not prejudiced by the Board's consideration of this evidence in the first instance. The matter on appeal has been developed and adjudicated characterized as entitlement to an earlier effective date for the award of a TDIU rating. Given the facts of this case (discussed in greater detail below) and the theory of entitlement presented, the Board finds that the issue is more properly stated as listed on the preceding page. The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. The issue of entitlement to special home adaptation has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A February 2003 rating decision granted the Veteran a TDIU rating effective November 23, 2000. 2. The Veteran was divorced in March 2004; VA mailed correspondence to the Veteran at a new address as early as in December 2005. 3. In April 2008, VA mailed to the Veteran, at his old address, a VA Form 21-4140 (Employment Questionnaire); he did not respond. 4. A July 2008 rating decision proposed discontinuance of the Veteran's TDIU rating on the basis that he had failed to complete and return the VA Form 21-4140 mailed to him in April 2008; notice of this rating decision was mailed to his old address; he did not respond. 5. A September 2008 rating decision discontinued the TDIU rating effective October 1, 2008; notice of this rating decision was mailed to the Veteran's old address; he did not respond. 6. On October 19, 2009, the Veteran contacted VA to file a new claim for a TDIU, providing the new address (where VA had mailed correspondence to him as early as in December 2005); he informed VA that he did not return the VA Form 21-4140 sent to him (at his old address) in April 2008 because he had not received it; he explained that his ex-wife still lived at the old address and did not give him his mail. 7. A May 2010 rating decision granted the Veteran a TDIU rating effective October 19, 2009. 8. The presumption of regularity of mail delivery is rebutted by clear evidence to the contrary (i.e., that the Veteran did not receive the April 2008 VA Form 21-4140 and notices pertaining to the TDIU rating termination); VA's communications to the Veteran pertaining to the discontinuance of his TDIU rating were mailed to him at an old address when VA was aware that he had a new mailing address; and the discontinuance of his TDIU rating effective October 1, 2008 violated due process. CONCLUSION OF LAW The discontinuance of the Veteran's TDIU rating effective October 1, 2008 was clearly and unmistakably erroneous; restoration of the TDIU rating for the period from October 1, 2008 to October 19, 2009 is warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on this matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis In reducing a TDIU rating the provisions of 38 C.F.R. § 3.105(e) are for application. Caution must be exercised that actual employability is established by clear and convincing evidence. 38 C.F.R. § 3.343. Where reduction in evaluation is considered warranted, and would result in reduction or discontinuance of compensation payments being made, the beneficiary will be notified at his or her latest address of record of the contemplated action. 38 C.F.R. § 3.105(e). The Board notes that, "[t]here is a presumption of regularity that attaches to actions of public officials." Woods v. Gober, 14 Vet. App. 214, 220 (2000) (citing INS v. Miranda, 459 U.S. 14, 18 (1982); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926). The United States Court of Appeals for Veterans Claims (Court) has also "applied the presumption of regularity to all manner of VA processes and procedures." Woods, 14 Vet. App. at 220; see Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying presumption as to whether RO sent to claimant the application form for dependency and indemnity compensation). The Court has also stated that "[i]t is well settled that 'clear evidence to the contrary' is required to rebut the presumption of regularity, i.e. the presumption that notice was sent in the regular course of government action." Schoolman, 12 Vet. App. at 310. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A February 2003 rating decision granted the Veteran a TDIU rating effective November 23, 2000. The record reflects that the Veteran was divorced in March 2004 and that VA mailed correspondence to him at a new address as early as in December 2005. Specifically, in September 2011 he has submitted four pieces of correspondence VA mailed to his new address: a notification letter for a benefits increase (dated in December 2005); a reminder of VA medical appointments (dated in May 2006); a notification letter for an award of educational benefits (dated in September 2006); and a survey of VA healthcare in 2006 (undated). In April 2008, VA mailed the Veteran a VA Form 21-4140 (Employment Questionnaire) to his old address; he did not respond. A July 2008 rating decision, proposed to discontinue the TDIU rating on the basis that he failed to complete and return the VA Form 21-4140 mailed in April 2008; notice of this rating decision was mailed to his old address; he did not respond. A September 2008 rating decision discontinued the TDIU rating, effective October 1, 2008; notice of this decision was mailed to his old address; he did not respond. On October 19, 2009, the Veteran contacted VA to file a new claim for a TDIU, providing the new address (where VA had mailed the 4 pieces of correspondence he submitted in September 2011). He informed VA that he did not return the April 2008 VA Form 21-4140 sent to his old address in April 2008 because he did not receive it. He explained that his ex-wife still lived at the old address and that she did not forward him his mail. In a May 2010 rating decision, the RO granted a TDIU, effective October 19, 2009. Throughout the appeal, including at the August 2011 hearing, the Veteran reiterated that he never received the VA Form 21-4140 mailed in April 2008 because it was mailed to his old address and his ex-wife did not give him his mail. He also testified that he had notified VA of his new address right after his March 2004 divorce. The Board finds the Veteran's contentions and testimony to be credible, particularly in light of the evidence he submitted in September 2011 showing that VA had mailed four pieces of correspondence to his new address in 2005 and 2006 (reflecting that VA was aware of his new address long prior to the notices and implementation of the October 1, 2008 discontinuance of TDIU). These pieces of correspondence clearly show that the Veteran had indeed submitted a change of address to VA as early as in December 2005 (as VA correspondence was sent to his new address at that time). The Board finds that it was reasonable for the Veteran to have assumed that the change of address would apply VA system-wide. The Board concludes: that there is clear evidence to rebut the presumption of regularity of mail delivery (specifically of the employment questionnaire mailed in April 2008 and notices of the proposal, and implementation, to discontinue TDIU payments based on his non-response to the April 2008 correspondence), as VA mailed such correspondence to an old address when (as VA's mailings in the interim show) VA was aware of the Veteran's changed (new) address; that the proposal and implementation of the discontinuance of TDIU from October 1, 2008 to October 19, 2009 were accomplished without affording the Veteran due process protections (notice) mandated by governing regulation, and that the discontinuance was clearly erroneous; and that restoration of a TDIU rating for the period from October 1, 2008 to October 19, 2009 is warranted. ORDER Restoration of a TDIU rating for the period from October 1, 2008 to October 19, 2009 is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs