Citation Nr: 1804792	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-05 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Whether the reduction in the disability rating for the Veteran's lumbar spine disability from 40 to 20 percent effective May 1, 2012 was proper.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Michael Duffy, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from October 1979 to October 2005.     

This appeal comes to the Board of Veterans' Appeals (Board) from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2017 hearing.  A transcript of the hearing is associated with the evidence of record.  


FINDING OF FACT

While the Veteran filed a timely request for a personal hearing, the RO did not afford the Veteran a predetermination hearing before reducing his rating for his lumbar spine disability from 40 percent to 20 percent. 


CONCLUSION OF LAW

The reduction of the evaluation for the Veteran's lumbar spine disability from 40 percent to 20 percent effective May 1, 2012 was not proper.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105(e), 3.321(b)(1), 3.343(a), 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5242 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 C.F.R. § 3.105(e), where a reduction in 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 or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued 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.  

Under 38 C.F.R. § 3.105(i), the advance written notice concerning proposed action must inform the beneficiary that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the 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.  The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative.  The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility.  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.

In a November 2011 rating decision, the RO proposed to decrease the Veteran's disability rating for his lumbar spine disability from 40 percent to 20 percent.   In a letter dated November 22, 2011, the RO notified the Veteran that if he requested a personal hearing within 30 days, payments would be continued at the present rate until the hearing was held and testimony reviewed. 
 
While VA received a timely request for a predetermination hearing from the Veteran on December 20, 2011, the RO did not afford the Veteran a hearing before reducing his disability rating as proposed.  See February 2012 rating decision.  Therefore, the Board finds the reduction was improper in this case.  While the RO acknowledged its error, it did not correct the error by restoring the Veteran's disability rating as of the date of the reduction.  See December 2013 Transcript of Hearing at the San Diego RO; December 2012 deferred rating decision.  Ultimately, the Board finds that the reduction is void ab initio, and restoration of the Veteran's 40 percent rating for his lumbar spine disability is warranted.


ORDER

A 40 percent disability evaluation for the Veteran's lumbar spine disability is restored, effective May 1, 2012, the date of the reduction. 






____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs