Citation Nr: 18152332
Decision Date: 11/21/18	Archive Date: 11/21/18

DOCKET NO. 16-15 782
DATE:	November 21, 2018
ORDER
The reduction of the rating for hypertension from 60 percent to 40 percent, effective April 1, 2015, was improper and restoration of the prior rating is granted.
FINDING OF FACT
The Veteran requested a predetermination hearing within 30 days of notice of the proposed rating reduction, but no hearing was scheduled. 
CONCLUSION OF LAW
The requirements to reduce the rating for hypertension were not followed, and the criteria for restoration of the prior rating of 60 percent, effective from April 1, 2015, have been met. 38 U.S.C. § 5112 (2012); 38 C.F.R. § 3.105(e)&(i) (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Propriety of the rating reduction for hypertension from 60 percent to 40 percent, effective April 1, 2015
If the special procedural prerequisites for a rating reduction have not been followed, the reduction is void ab initio and reinstatement of the prior rating is required. Schafrath v. Derwinski, 1 Vet. App. 589, 595-96 (1991). This includes both heightened notification and procedural safeguards for certain cases, as well as the requirement for all reduction cases of an actual improvement in the Veteran’s disability level. See id.; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). The agency of original jurisdiction (AOJ) did not fully follow these requirements in this case; therefore, the rating reduction was improper and restoration is required.
The heightened notification and procedural safeguards provided in 38 C.F.R. § 3.105(e) & (i) apply to this case because the reduction of the Veteran’s rating for hypertension from 60 percent to 40 percent resulted in a decrease in his overall combined disability rating, and thus, a reduction in his compensation payments. 
In April 2014, the AOJ provided a rating decision proposing the reduction and notified the Veteran of the reasons for the contemplated action, allowing 60 days to present additional evidence to show that compensation payments should be continued at their present level, as well as 30 days to request a hearing prior to finalizing the rating reduction. See 38 C.F.R. § 3.105(e) & (i). In May 2015, the AOJ issued a rating decision that finalized the rating reduction, effective April 1, 2015, based on a lack of additional evidence within 60 days. 
However, the AOJ did not acknowledge the timely request for a predetermination hearing. In May 2014, within 30 days of the notice of the proposed reduction, the Veteran submitted a statement requesting a hearing on the proposed reduction. Under 38 C.F.R. § 3.105(i), if there is a timely request for a predetermination hearing, benefit payments shall continue at the previously established level pending a final determination concerning the proposed action, and final action will be taken only after the hearing is held or if the Veteran fails to appear for the hearing without good cause. 38 C.F.R. § 3.105(i)(1)-(2). 
Neither the Veteran nor his representative made arguments concerning this procedural defect. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”). Instead, the arguments focus on showing that the Veteran’s hypertension continued at the same level and continued to warrant a 60 percent rating. Nevertheless, further discussion of the evidence and applicable law in this regard is unnecessary due to the above fatal defect. Because the special prerequisite was not followed, the rating reduction was void. Schafrath, 1 Vet. App. at 595-96. Restoration is warranted, and the appeal is granted.
 
DEBORAH W. SINGLETON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Wheatley