Citation Nr: 18155431 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-13 669 DATE: December 4, 2018 ORDER Entitlement to restoration of the 60 percent rating for service-connected hypertensive heart disease, effective August 1, 2013, is granted. FINDINGS OF FACT 1. The reduction in the rating for hypertensive heart disease from 60 percent to 0 percent, effective August 1, 2013, resulted in a reduction of compensation payments that were being made; therefore, the notice provisions of the regulation governing compensation rating reductions apply. 2. In December 2012, the Veteran requested to participate in a predetermination hearing conducted by a VA official, and the predetermination hearing was scheduled on May 10, 2013. 3. On May 2, 2013 and May 10, 2013, the Veteran made requests to reschedule the hearing due to an emergency, but no attempt to reschedule the hearing was made. 4. In a May 21, 2013 VA rating decision, the Regional Office (RO) reduced the rating for service-connected hypertensive heart disease. CONCLUSION OF LAW The reduction of the disability rating for service-connected hypertensive heart disease from 60 to 0 percent was not made in accordance with the required procedural safeguards and is void ab initio. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. § 3.105 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training in the United States Army National Guard from August 1999 to February 2000 and on active duty in the United States Army from April 2000 to April 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Whether the reduction in the disability rating for hypertensive heart disease from 60 to 0 percent was proper The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). In addition, the veteran will be informed that he may request a predetermination hearing, provided that the request 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 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. 38 C.F.R. § 3.105(i). The provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. In this case, since there was a reduction in the overall compensation paid to the Veteran, the due process requirements of 38 C.F.R. § 3.105(e) apply. Where VA has reduced a veteran’s rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In a June 2010 VA rating decision, service connection for hypertensive heart disease was granted and assigned a 60 percent disability rating, effective May 4, 2010. In a December 2012 rating decision, the RO proposed to reduce the Veteran’s hypertensive heart disease to noncompensable on the basis that the January 2011 and November 2011 VA examination reports showed that the Veteran did not, in fact, have hypertensive heart disease. In a December 2012 letter, the RO advised the Veteran of the proposed reduction and offered him the opportunity to submit evidence and argument, and to request a hearing. In a subsequent December 2012 VA Form 21-4138, the Veteran requested to participate in a predetermination hearing conducted by a VA official. In an April 2013 notice letter, the Veteran was informed that his predetermination hearing was scheduled on May 10, 2013. On May 2, 2013 and May 10, 2013, the Veteran made requests to reschedule the hearing due to an emergency. In the May 2013 rating decision, the Veteran’s hypertensive heart disease was reduced to 0 percent (noncompensable), effective August 1, 2013 (the first day of the month after which the Veteran’s 60-day proposal notice expired). After reviewing the record, the Board finds that the RO failed to comply with the procedural requirements of 38 C.F.R. § 3.105 in reducing the Veteran’s disability evaluation. Thus, the reduction is void ab initio and the prior rating must be restored. See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). As set forth above, because the reduction of the disability rating for the service-connected hypertensive heart disease would result in a decrease in the overall amount of his VA compensation, the RO issued a letter in December 2012 advising the Veteran of the proposed reduction in accordance with 38 C.F.R. § 3.105(e). Upon receipt of that letter, the Veteran exercised his right to participate in a predetermination hearing by filing a timely request for such hearing in a December 2012 VA Form 21-4138. While the predetermination hearing was scheduled for May 10, 2013, review of the record does not show that any attempt was made to reschedule the predetermination hearing pursuant to the Veteran’s two requests on May 2, 2013 and May 10, 2013 due to an emergency. (Continued on the next page)   Under these circumstances, the finds that the requirements of 38 C.F.R. § 3.105 were not met and the Board need not reach the merits of the question of whether reduction itself was proper based on applicable regulations. As such, the reduction is void ab initio, and the 60 percent disability rating for service-connected hypertensive heart disease is restored effective August 1, 2013. See 38 C.F.R. § 3.105(i). T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel