Citation Nr: 1512227 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 14-16 691 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether the severance of entitlement to special monthly compensation (SMC) for aid and attendance was proper. 2. Whether the severance of entitlement to a total disability rating based on individual unemployability (TDIU) was proper. 3. Whether the severance of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 was proper. 4. Whether the reduction of the disability rating from 40 percent to 10 percent for degenerative disc disease, residuals of low back injury, was proper. 5. Whether the reduction of the disability rating from 20 percent to 0 percent for left lower extremity weakness, was proper. 6. Whether the reduction of the disability rating from 20 percent to 0 percent for right lower extremity weakness, was proper. ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from July 1978 to July 1998. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board has reviewed the Veteran's paper claims file as well as the electronic records in the Veterans Benefits Management System (VBMS) and the Virtual VA system to ensure consideration of the totality of the evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a) (2) (West 2014). The issues of whether the severance of entitlement to SMC was proper, whether the severance of entitlement to TDIU was proper, and whether the severance of entitlement to DEA was proper are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for degenerative disc disease, residuals of low back injury, left lower extremity weakness, and right lower extremity weakness had been in effect for more than five years at the time of the March 2012 reduction. 2. The March 2012 rating decision that effectuated the rating reductions, did not reflect consideration of 38 C.F.R. § 3.344 and were not in accordance with the requirements of the regulation. CONCLUSIONS OF LAW 1. The decision to reduce the rating for degenerative disc disease, residuals of low back injury from 40 to 10 percent from June 1, 2012, is void ab initio, and restoration of the 40 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344 (2014). 2. The decision to reduce the rating for left lower extremity weakness from 20 to 0 percent from June 1, 2012, is void ab initio, and restoration of the 20 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344 (2014). 3. The decision to reduce the rating for right lower extremity weakness from 20 to 0 percent from June 1, 2012, is void ab initio, and restoration of the 20 percent rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As discussed below, the Board finds that the reductions in the Veteran's disability ratings for her service-connected degenerative disc disease and left and right lower extremity weakness were not appropriate, and such disability ratings should be restored. As this decision represents a complete grant of the benefits sought, the Board finds no need to discuss VA's duty to notify and to assist the Veteran. A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). When reduction in an evaluation is contemplated, and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). 38 C.F.R. § 3.344 establishes greater protections of benefits which have been in effect for five years or more. 38 C.F.R. § 3.344(c). In such a case, the AOJ must find the following: (1) the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). Service connection for degenerative disc disease, low back pain due to injury was granted in a March 1999 rating decision, and an evaluation of 20 percent was assigned effective August 1, 1998. A January 2003 rating decision increased the evaluation to 40 percent effective May 30, 2002. In a November 2003 rating decision, service connection for left lower extremity and right lower extremity weakness was granted, and a 20 percent evaluation was assigned effective May 19, 2003. As the 40 percent evaluation for degenerative disc disease and the 20 percent evaluations for left and right lower extremity weakness have been in effect for over five years, the provisions of 38 C.F.R. § 3.344 are applicable. In this case, the Veteran was notified of the proposed reduction of her disability rating in a September 2011 letter and rating decision in accordance with 38 C.F.R. § 3.105(e). However, the Board finds that the reduction of the disability ratings for degenerative disc disease and the 20 percent evaluations for left and right lower extremity weakness are void ab initio because the provisions of 38 C.F.R. § 3.344 were not considered. The Veteran was not notified of the provisions of 38 C.F.R. § 3.344 at any time. Although the September 2011 rating decision, March 2012 rating decision, and the April 2014 Statement of the Case set forth relevant medical evidence and discussed the rating criteria used to rate the disabilities at issue, there were no findings that any material improvement found would be maintained under the ordinary conditions of life. Therefore, the Board finds that the RO's analysis was not in compliance with 38 C.F.R. § 3.344. Failure to consider and apply the applicable provisions of 38 C.F.R. § 3.344, renders a rating decision void ab initio because the error is not in accordance with the law. Greyzck v. West, 12 Vet. App. 288, 292 (1999); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Since the March 2012 rating decision that accomplished the reduction of the 40 percent evaluation for degenerative disc disease and the reduction of the 20 percent evaluations for left and right lower extremity weakness did not properly apply the provisions of 38 C.F.R. § 3.344, the reductions are void. The appropriate remedy in this case is restoration of the 40 percent evaluation and 20 percent evaluations effective on the date of the reduction. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). Accordingly, the Board finds that restoration of the 40 percent evaluation for degenerative disc disease, residuals of low back injury, the 20 percent evaluation for left lower extremity weakness, and the 20 percent evaluation for right lower extremity weakness, is warranted. ORDER The reduction in evaluation for degenerative disc disease, residuals of low back injury, was not proper, restoration of the 40 percent evaluation is granted effective June 1, 2012. The reduction in evaluation for left lower extremity weakness, was not proper, restoration of the 20 percent evaluation is granted effective June 1, 2012. The reduction in evaluation for right lower extremity weakness, was not proper, restoration of the 20 percent evaluation is granted effective June 1, 2012. REMAND In the March 2012 rating decision, the RO found that the Veteran had fraudulently represented her disability level to VA, resulting in the grant of benefits for which she was not entitled. As a result, the RO discontinued entitlement to special monthly compensation for aid and attendance, discontinued entitlement to TDIU, and discontinued eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. The RO's determination that the Veteran had engaged in fraud rested in significant part on the VA Office of the Inspector General (OIG) investigation. The claims file contains documents submitted by the Veteran, a November 2009 and an August 2011 OIG Memorandum for Record, as well as a December 2010 statement from the Veteran to the OIG; but the claims file does not include the OIG's report, or accompanying file. The Board concludes that the OIG report and accompanying file, in its entirety or to the extent possible, must be associated with the claims file to allow the Board to fully consider the evidence in this case. Additionally, in a December 2011 independent medical evaluation, the Veteran indicated that she has been receiving Social Security Administration (SSA) disability benefits since July 2004. The claims file does not indicate that any SSA records were obtained. VA has a duty to obtain all relevant records in the custody of a Federal agency, and such efforts must continue until the records are obtained, or until it can be certified that they are not available. 38 C.F.R. § 3.159(c) (2). As the Board cannot say that the SSA records are not relevant to issues currently on appeal, remand is required to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). On remand, appropriate steps must be taken to obtain copies of any decision or determination with respect to the Veteran's SSA benefits, as well as copies of all supporting documentation. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the VA Office of the Inspector General (OIG) and request a copy of the report of the investigation that culminated in the finding that the Veteran had committed fraud in the pursuit of VA compensation benefits. The documentation used to reach that decision should also be requested. The report and documentation should be placed in the claims file. Should the OIG conclude that privacy issues preclude the provision to VA of the report and associated records in their entirety, provide a redacted copy of the file. 2. Contact SSA and request complete copies of any decision or determination with respect to the Veteran's application for SSA benefits, as well as copies of all supporting documentation. If such records do not exist or are otherwise not available, such must be certified in writing. 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs