Citation Nr: 18152479
Decision Date: 11/27/18	Archive Date: 11/23/18

DOCKET NO. 16-43 497
DATE:	November 27, 2018
ORDER
The reduction to a noncompensable disability rating being void, restoration of a 20 percent rating for degenerative joint disease of the lumbar spine is granted, effective July 20, 2015.
FINDINGS OF FACT
1. The July 2015 rating decision reduced the disability rating for the service-connected degenerative joint disease of the lumbar spine from 20 percent to noncompensable effective July 20, 2015, resulting in a decrease in the Veteran’s combined disability rating from 50 percent to 40 percent and a reduction in compensation payments.
2. Prior to the July 2015 reduction, the Veteran was not provided with a rating decision proposing to reduce the disability rating for the service-connected degenerative joint disease of the lumbar spine or notice of the 60 day period to submit evidence and of the right to request a predetermination hearing.
CONCLUSION OF LAW
The reduction of the 20 percent rating assigned for the service-connected degenerative joint disease of the lumbar spine was not proper and is void ab initio.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.71a, Diagnostic Code 5242 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board observes 38 C.F.R. § 3.105 outlines a set of procedural safeguards governing rating reductions, which are required to be followed by VA before it issues any final rating reduction.  See Brown v. Brown, 5 Vet. App. 413, 418 (1993). 
When a rating reduction is warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating decision proposing the reduction must be prepared, setting forth all of the material facts and reasons for the proposed reduction.  38 C.F.R. § 3.105 (e).  The Veteran must then be notified of the contemplated action and the detailed reasons therefor, and given 60 days to present additional evidence showing that compensation should be continued at the present level.  Id.  The Veteran must be informed of the right to a predetermination hearing, if requested within 30 days.  38 C.F.R. § 3.105 (i)(1).  If additional evidence is not received and a predetermination hearing is not requested, written notice of the final action, including the reasons for the decision and the supporting evidence, must be issued to the Veteran.  38 C.F.R. § 3.105 (e), (i). 
These are such important safeguards that the United States Court of Appeals for Veterans Claims (Court) has held that where VA has reduced a Veteran’s rating without observance of applicable law and regulation, such a rating is void ab initio.  Brown, 5 Vet. App. at 422.  Thus, to remedy such cases, the decision must be reversed as unlawful.  Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).
In this case, the reduction of the Veteran’s 20 percent disability rating for his service-connected degenerative joint disease of the lumbar spine to noncompensable, effective July 20, 2015, resulted in an overall reduction in the Veteran’s combined disability rating from 50 percent to 40 percent and a reduction in compensation payments.  See July 2015 rating decision.  As such, VA was required to comply with the due process procedures governing rating reductions.  38 C.F.R. § 3.105 (e). 
However, the RO failed to issue a rating decision proposing the reduction and did not provide proper notice of the 60 day period to provide evidence or the right to have a predetermination hearing.  38 C.F.R. § 3.105 (e), (i)(1).  As the RO failed to comply with the due process requirements governing rating reductions, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).  Therefore, restoration of the 20 percent disability rating for the service-connected degenerative joint disease of the lumbar spine is warranted from July 20, 2015.
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Ko, Associate Counsel