Citation Nr: 1807787	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  11-27 104	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Whether the reduction in the evaluation of arteriosclerotic heart disease from 100 percent to 60 percent disabling was proper.


ATTORNEY FOR THE BOARD

A. G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from November 1968 to November 1971.  He died in March 2014.  The appellant is the Veteran's sibling.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).


FINDINGS OF FACT

1. At the time of the May 2009 proposed rating reduction for arteriosclerotic heart disease, which became effective in October 2009, the disability rating had been in effect for more than five years.

2. The rating for a arteriosclerotic heart disease with hypertension was reduced without observation of regulatory requirements.


CONCLUSION OF LAW

The reduction of the rating for arteriosclerotic heart disease with hypertension from 100 percent to 60 percent, effective since October 1, 2009, is void ab initio.  38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.105, 3.343, 3.344 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to notify and to assist

VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits.  38 U.S.C. §§ 5103 and 5103A (2012); 38 C.F.R. §§ 3.159 (2017).  Any errors with respect to VA's duties to notify and to assist are harmless here because the claim for restoration of the prior disability rating has been granted in full.  Thus, the purposes for the notification and assistance have been met. 

II. Propriety of disability rating reduction

For a reduction of a disability rating to be proper, there are procedural requirements that must be followed and there are substantive requirements that must be followed.  As discussed in the sections below, the RO followed the proper procedural steps in reducing the Veteran's disability rating.  However, since the record shows that the RO did not observe the regulatory requirements at the time of the reduction, the substantive requirements were not met.  As a result, the reduction was improper and restoration of the 100 percent disability rating is warranted. 

A. Procedural requirements 

In February 1972, the RO granted service connection for the Veteran's hypertension and assigned a noncompensable (that is, a zero percent) disability rating, effective from November 16, 1971.  In December 1988, the Veteran was granted service connection for arteriosclerotic coronary artery disease (ASCAD) and for rating purposes, it was considered part of the hypertension disability.  A rating of 30 percent was assigned for ASCAD, effective June 8, 1988.  Since then, the rating has been increased several times.  As relevant here, in an August 2003 rating decision, the disability rating for the Veteran's service-connected arteriosclerotic heart disease was increased to 100 percent, effective from May 29, 2003. 

A VA examination was conducted in January 2009.  The RO thereafter determined that the Veteran's arteriosclerotic heart disease was no more than 60 percent disabling. 

Where a reduction in the evaluation of a service-connected disability is considered warranted-and the lower evaluation would result in a reduction of compensation payments currently being made-a rating action proposing the reduction must be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e).  VA must also notify the Veteran that he has 60 days during which to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e).  The veteran also must be notified that he will have an opportunity for a pre-determination hearing, provided that the request for such a hearing is received by VA within 30 days after the date of the notice.  38 C.F.R. 
§ 3.105(i). 

The RO complied with those pre-decisional procedural requirements.  A May 2009 rating decision proposed the reduction of the schedular rating for the Veteran's arteriosclerotic heart disease from 100 percent to 60 percent.  The Veteran was notified of the proposed action in a May 2009 letter and was given the required 60 days to present additional evidence.  He was also notified of the opportunity for a hearing and advised of the deadline for requesting one. 

The Veteran did not request a pre-decisional hearing, but he did submit additional evidence to the RO.  The RO nevertheless determined that the Veteran's disability rating should be reduced. 

The RO complied with all procedural requirements for a final decision as well.  When, as here, a pre-decision hearing is not requested, after all pre-decisional requirements have been met, the final action will be based solely upon the evidence of record.  38 C.F.R. § 3.105(i)(2).  Written notice of the final action shall be issued to the Veteran and his or her representative, setting forth the reasons therefor and the evidence upon which it is based.  Where, following consideration of any additional evidence submitted, a reduction of benefits is determined to be warranted, the effective date of such reduction shall be the last day of the month in which the 60-day period from the date of notice to the Veteran of the final action expires.  38 U.S.C. § 5112(b)(5); 38 C.F.R. § 3.105(i)(2)(i). 

A July 2009 rating decision reduced the Veteran's disability rating from 100 percent to 60 percent, effective from October 1, 2009.  The rating decision essentially stated that the basis for the reduction was the January 2009 VA examination that found his ejection fraction was 51 percent.  A July 2009 letter provided him with notice of the action taken and his appellate rights.  That rating decision was issued after the expiration of the Veteran's 60-day response period, so it was issued after all pre-decisional requirements were met.  Since the reduction in the Veteran's service-connected disability compensation was approved in mid-July 2009, an effective date of October 1, 2009, complies with the effective date provisions because the RO assigned a date after the required period expired.  Thus, VA met all procedural requirements under 38 U.S.C. § 5112(b)(5) and 38 C.F.R. § 3.105(e) and (i).  However, as discussed below, the substantive requirements for reducing the Veteran's disability rating were not met. 

B. Substantive requirements

At the time of the Veteran's rating reduction, his previous 100 percent rating for arteriosclerotic heart disease with hypertension had been in effect for more than five years; therefore, the rating could not be reduced without compliance with the provisions of 38 C.F.R. § 3.344(a) and (b) regarding stabilization of ratings.  See 38 C.F.R. § 3.344 (c); Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992).

The stabilization of ratings regulation provides that rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.  It is essential that the entire record of examinations and the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history.  Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.  Ratings on account of diseases subject to temporary or episodic improvement, including arteriosclerotic heart disease, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated.  Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown (Kevin) v. Brown, 5 Vet. App. 413, 416-21 (1993).

The July 2009 rating decision that reduced the disability rating for the Veteran's arteriosclerotic heart disease with hypertension did not discuss the application of the above regulations to the current appeal.  Further, the reduction was based on one examination report and as noted above, the regulation specifically prohibits a reduction of a rating for arteriosclerotic heart disease based on one examination.  Further, the disability rating was reduced without any evidence of material improvement of the condition, and despite the fact that the Veteran had submitted private medical evidence affirmatively demonstrating that his condition had not improved.  See July 2009 letter from Dr. B.H.S.  No medical evidence of record at the time of the rating reduction "clearly warrant[ed] the conclusion that sustained improvement has been demonstrated" as required under the 38 C.F.R. § 3.344(a) criteria.

Failure to consider and apply the provisions of 38 C.F.R. § 3.344 renders the rating reduction void ab initio.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992) (rating reduction that failed to consider 38 C.F.R. §§ 3.343(a) and 3.344(a) was void ab initio); see also Kitchens, 7 Vet. App. 325; Brown, 5 Vet. App. at 419.  Therefore, because the RO failed to apply the applicable provisions of 38 C.F.R. 
§ 3.344 in its rating reduction of the arteriosclerotic heart disease with hypertension from 100 percent to a 60 percent rating, the Board finds that the July 2009 rating decision is void ab initio as not in accordance with the applicable criteria.  As such, the Board restores the disability rating for arteriosclerotic heart disease with hypertension.  38 C.F.R. § 3.344.


ORDER

The reduction in the rating for arteriosclerotic heart disease with hypertension from 100 percent to a 60 percent rating, effective October 1, 2009, was not proper and the 100 percent rating is restored, effective October 1, 2009.





______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs