Citation Nr: 18156352 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-62 625 DATE: December 7, 2018 ORDER The reduction of the rating for residuals of prostate cancer from 100 percent to 60 percent, effective May 1, 2015, was not proper; the 100 percent rating is restored effective May 1, 2015. An effective date prior to May 1, 2015 for the grant of a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU), is dismissed. FINDINGS OF FACT 1. The Veteran requested a predetermination hearing within 30 days of being notified of a proposed rating reduction for residuals of prostate cancer; such hearing was not held. 2. In light of the 100 percent schedular rating for residuals of prostate cancer (restored herein), there is no longer a case or controversy with respect to the issue of entitlement to a TDIU prior to May 1, 2015. 3. The Veteran has one service-connected disability rated as total. The combined total rating of his other service-connected disabilities is not at least 60 percent disabling. CONCLUSIONS OF LAW 1. The reduction in the disability rating for residuals of prostate cancer from 100 percent to 60 percent disabling effective May 1, 2015, was not proper; the 100 percent rating is restored effective May 1, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7528 (2017). 2. The criteria for an earlier effective date for the grant of a TDIU prior to May 1, 2015, is dismissed as moot. 38 U.S.C. §§ 7104, 7105(d)(5) (2012); 38 C.F.R. § 20.101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Reduction for Prostate Cancer Disability—Laws and Analysis Where a reduction in an evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or termination of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons, and the AOJ must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The Veteran must also 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. 38 C.F.R. § 3.105 (e), (i). Where a rating is reduced without observance of applicable law and regulations, such rating is “void ab initio” and is set aside. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In an August 2014 rating decision, the RO proposed to reduce the Veteran’s rating for residuals of prostate cancer from 100 percent to 60 percent. VA mailed the required notice containing the due process requirements to the Veteran in September 2014. That same month, the Veteran submitted a statement on the prescribed VA form and stated that he was requesting a “pre-determination hearing.” The Board finds that the Veteran requested a predetermination hearing in September 2014 in accordance with 38 C.F.R. § 3.105 (i). The Veteran’s request was not acknowledged by the RO and, for reasons unclear from review of the claims file, a predetermination hearing was not held. For this reason, the reduction in the disability rating for residuals of prostate cancer from 100 percent to 60 percent disabling was not proper because the provisions of 38 C.F.R. § 3.105 (e) and § 3.105(i) were not followed, and the reduction is void ab initio. Accordingly, the Veteran’s appeal is granted. TDIU Prior to May 1, 2015 In an August 2017 rating decision, the Veteran was granted a TDIU effective May 1, 2015. The Board notes that a TDIU is part and parcel of an increased rating claim; as such, the Board will address the TDIU issue for the period prior to May 1, 2015. As decided herein, the Veteran’s 100 percent disability rating for residuals of prostate cancer has been restored effective May 1, 2015. Assignment of a total schedular rating does not automatically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) (2012) by having an “additional” disability of 60 percent or more (“housebound” rate)). In Bradley, the United States Court of Appeals for Veterans Claims (Court) found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. The Veteran’s only other service-connected disability is for a residual scar associated with his prostate cancer disability (rated as noncompensable). The medical evidence shows that the Veteran’s impairment in occupational functioning is due to his voiding dysfunction residuals associated with prostate cancer (and not his scar). In other words, the evidence does not demonstrate that the Veteran is unable to secure or follow a substantially gainful occupation solely due to his service-connected scar disability, nor has the Veteran asserted otherwise. As such, the Board finds that the assignment of a total schedular evaluation for voiding dysfunction residuals associated with the Veteran’s prostate cancer renders the TDIU claim moot. Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, an earlier effective date for the award of a TDIU need not be addressed. (Continued on Next Page) Also, despite the Veteran’s award of a 100 percent rating for his prostate disability effective May 1, 2015, he is not eligible for SMC as he does not, as required by 38 U.S.C. § 1114 (s), have an “additional” disability of 60 percent or more. The Veteran is not eligible for SMC under 38 U.S.C. § 1114; 38 C.F.R. § 3.350, as matter of law. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel