Citation Nr: 1804770 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-09 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether the reduction of the rating for neurocardiogenic syncope (previously vasovagal syncope) from 60 percent to noncompensable, effective January 1, 2012 was proper. 2. Whether the discontinuance of a total disability rating based on individual unemployability (TDIU) from January 1, 2012 was proper. 3. Whether the discontinuance of Dependents' Educational Assistance (DEA) from January 1, 2012 was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service in the U.S. Marine Corps from August 1990 to February 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. A May 2000 rating decision granted the Veteran service connection for vasovagal syncope, rated as 60 percent disabling effective January 21, 1995, and entitlement to a TDIU effective July 1, 1996. A September 2004 rating decision granted eligibility to DEA effective July 1, 1996. 2. In a July 2011 rating decision, the RO proposed to reduce the 60 percent rating for neurocardiogenic syncope (previously vasovagal syncope) to noncompensable, and to discontinue entitlement to TDIU and DEA; the Veteran was notified of this decision in July 2011. 3. Within 30 days of the issuance of a proposed reduction in evaluation for neurocardiogenic syncope and of a proposed discontinuance of entitlement to TDIU and DEA, the Veteran requested a hearing on the matter; the record does not reflect that a hearing was scheduled. 4. An October 2011 rating decision implemented the reduction in the rating for neurocardiogenic syncope from 60 percent to noncompensable and discontinued entitlement to TDIU and DEA; all three changes were effective January 1, 2012. CONCLUSIONS OF LAW 1. The reduction of the rating for neurocardiogenic syncope from 60 percent to noncompensable, effective January 1, 2012, was not proper. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.105(e), (i) (2017). 2. The discontinuance of entitlement to TDIU, effective January 1, 2012, was not proper. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.105(e), (i). 3. The discontinuance of entitlement to DEA, effective January 1, 2012, was not proper. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.105(e), (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions, as required by the Veterans Claims Assistance Act of 2000 (VCAA). As the benefit sought is being granted, there is no reason to discuss the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Legal Principles and Analysis Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability 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 latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payment should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. According to 38 C.F.R. § 3.105(i)(1), when a beneficiary is provided advanced written notice concerning a proposed reduction, he will be informed of the opportunity to have a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). In the present case, the record does not reflect that these procedural safeguards were afforded the Veteran. Specifically, the record shows that in a July 2011 rating decision, the RO proposed to reduce the evaluation of the Veteran's neurocardiogenic syncope from 60 percent to noncompensable and to discontinue entitlement to a TDIU and to DEA, effective January 1, 2012. The Veteran was notified of the July 2011 rating decision by a letter dated July 25, 2011. This letter also notified the Veteran that the proposed reduction would result in a reduction of the combined evaluation of all his service-connected disabilities, and that his monthly rate of compensation would be affected. In August 2011, within 30 days of the issuance of a proposed reduction, the RO received a fax from the Veteran's congressman's office stating the Veteran had requested a personal hearing in connection with the proposed reduction and discontinuance of benefits. The fax cover sheet and other markings indicate that this document was faxed from the congressional office to the RO in Boise, Idaho on August 2, 2011. In an August 2011 "notice of disagreement," the Veteran again requested a hearing in connection with the proposed reduction. The date stamp appearing on this document indicates that this document was received by VA on August 16, 2011 - also within 30 days of the proposed rating. In October 2011, the RO issued a rating decision implementing the proposed reduction and discontinuance of benefits, effective January 1, 2012. The list of evidence considered in the October 2011 rating decision does not indicate that the Veteran was ever afforded an opportunity for a predetermination hearing. A review of the record likewise does not show that the Veteran was scheduled for a predetermination hearing, that a hearing was scheduled and he failed to attend, or that he submitted a statement withdrawing his request for a predetermination hearing. As was noted above, the Veteran submitted a timely request for a predetermination hearing, in accordance with 38 C.F.R. § 3.105(i). Therefore, by regulation, no reduction or discontinuance could take place while that request was pending. In light of the foregoing, the Board finds that the RO violated the due process protections of 38 C.F.R. § 3.105(e) and (i). The reduction and discontinuance are thus void ab initio, and restoration of the 60 percent evaluation for neurocardiogenic syncope is warranted from January 1, 2012; restoration of entitlement to TDIU is warranted from January 1, 2012; and restoration of entitlement to DEA is warranted from January 1, 2012. This determination implies no findings regarding the factual entitlement to such rating and benefits, and in no way impairs the ability of VA to again undertake reduction proceedings, should such be warranted. The Board notes that it is troubled by evidence indicating that the Veteran may have been fraudulently receiving VA disability benefits. See May 2011 emails from the VA Office of the Inspector General, Criminal Investigations Division. In this case, however, the law regarding the procedural due process protections for reducing or discontinuing entitlement to disability benefits is clear and the facts in this case plainly show that the Veteran was not afforded such due process. ORDER The October 2011 disability rating reduction was improper; restoration of a 60 percent evaluation for neurocardiogenic syncope from January 1, 2012, is granted. The October 2011 discontinuance was improper; restoration of entitlement to TDIU from January 1, 2012, is granted. The October 2011 discontinuance was improper; restoration of entitlement to DEA from January 1, 2012, is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs