Citation Nr: 1802020 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-43 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether the reduction of the Veteran's service-connected hypothyroidism from 60 percent to 10 percent effective August 4, 2009 was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from July 1977 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in part, reduced the Veteran's disability rating for hypothyroidism from 60 percent to 10 percent effective August 4, 2009. Subsequently, by rating decision dated in April 2012, the RO increased the disability evaluation for hypothyroidism from 10 percent to 30 percent disabling, effective April 4, 2012. While the December 2015 supplemental statement of the case and the December 2017 Informal Hearing Presentation included the issue of entitlement to a disability rating greater than 30 percent for hypothyroidism effective April 4, 2012 as an issue on appeal, the Board notes that the Veteran never disagreed with the April 2012 rating decision. Nor has the Veteran ever requested a rating higher than 60 percent for his hypothyroidism. Instead, the Veteran has only argued that the reduction of his service-connected hypothyroidism from 60 percent to 10 percent effective August 4, 2009 was improper. As such, the Board declines to take jurisdiction over the issue of entitlement to a disability rating greater than 30 percent for hypothyroidism. This appeal is being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and the Virtual VA claims processing systems. FINDING OF FACT The September 2009 rating decision, which reduced the Veteran's disability rating for hypothyroidism from 60 percent to 10 percent effective August 4, 2009, did not consider required regulatory provisions and denied the Veteran due process. CONCLUSION OF LAW The September 2009 rating decision, which reduced the Veteran's disability rating for hypothyroidism from 60 percent to 10 percent effective August 4, 2009, is void ab initio, and the criteria for restoration of the 60 percent rating for this condition are met. 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION By way history, the Veteran submitted a claim for service connection for hypothyroidism in April 1994, within one year of his discharge from military service. By rating decision dated in July 1995, the RO granted service connection for hypothyroidism and assigned a 10 percent disability rating effective December 15, 1993, the day after the Veteran's discharge from military service. The Veteran appealed this decision to the Board. During the course of this appeal, in a June 1997 rating decision, the RO increased the Veteran's disability rating for hypothyroidism from 10 percent to 30 percent disabling effective September 3, 1996. Following significant development, in a July 2002 decision, the Board found that the Veteran met the criteria for a 60 percent disability rating for his hypothyroidism. This award was effectuated by rating decision dated in September 2002, awarding a 60 percent disability rating effective September 3, 1996. Following a routine re-examination of the Veteran's hypothyroidism in December 2004, a May 2005 rating decision proposed to decrease the Veteran's disability rating for hypothyroidism from 60 percent to 10 percent disabling but, this reduction was never effectuated. Instead, in a subsequent October 2006 rating decision, the RO continued the 60 percent rating for hypothyroidism. Following another routine re-examination of the Veteran's hypothyroidism in April 2009, a September 2009 rating decision reduced the Veteran's disability rating for hypothyroidism from 60 percent to 10 percent effective August 4, 2009. Notably, at the time of the September 2009 rating decision, the 60 percent rating for hypothyroidism had been in effect for more than 5 years. The Board finds that the RO failed to comply with the rules regarding reduction of disability ratings when it reduced the disability rating for hypothyroidism from 60 percent to 10 percent effective August 4, 2009. Congress has provided that 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. The Court has consistently held that when the RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288 (1999). Prior to reducing a Veteran's disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000). Generally, when reduction in the evaluation of a service- connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will 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). In this case, the RO reduced the Veteran's disability rating from 60 percent to 10 percent by rating decision dated in September 2009. The Veteran was not informed of the proposed reduction as he was not provided a rating decision proposing a reduction. The Veteran was not notified properly of the proposed rating reduction in this case. 38 C.F.R. § 3.105(e). He was informed of the rating reduction after the fact. He was not told of his right to submit evidence within 60 days. And he was not informed of his right to a hearing regarding the matter of the reduction. When an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. Greyzck, 12 Vet. App. at 292. The prescribed procedures were not followed in this case. Thus, the Board finds that the reduction from 60 percent to 10 percent effective August 4, 2009 for the Veteran's service-connected hypothyroidism is void ab initio. ORDER As the reduction of the 60 percent rating for hypothyroidism is found to be void ab initio, the claim for restoration of the 60 percent rating, from August 4, 2009, is granted. ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs