Citation Nr: 20004897 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 18-53 103A DATE: January 22, 2020 ORDER Whether the decrease in evaluation for a traumatic brain injury (TBI) from 10 percent disabling to noncompensable was proper. REMANDED Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. FINDING OF FACT 1. A February 2018 rating decision reduced the disability rating of the Veteran’s traumatic brain injury (TBI) from 10 percent to a noncompensable rating, effective December 28, 2017. 2. The RO failed to meet the procedural requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 10 percent to noncompensable for the Veteran’s service-connected TBI. CONCLUSION OF LAW The reduction in the Veteran's rating for traumatic brain injury (TBI) from 10 percent to a noncompensable rating was not proper and the rating decision on appeal is therefore void ab initio; the prior rating is restored. 38 U.S.C. §§ 1155, 5107, 5112 (2012); 38 C.F.R. §§ 3.105(e), 3.344(a), 4.97 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from December 1979 to November 1984. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the February 2018 rating decision issued by a Department of Veterans Affairs (VA) decreasing the Veteran’s service-connected TBI from a 10 percent disability rating to a noncompensable rating; and denying service connection for a left hip condition and a lumbar spine condition. In September 2018, the Veteran filed a timely notice of disagreement as to all three issues. A de novo review was completed and a statement of the case (SOC) was issued in October 2018. The Veteran filed a timely substantive appeal only as to the issue of the decrease in disability rating for service-connected TBI in December 2018. See Form 9, December 2018. As such, the Board does not have jurisdiction over the issues of service connection for a left hip condition and a lumbar spine condition. Whether the decrease in evaluation for a traumatic brain injury (TBI) from 10 percent disabling to noncompensable was proper There are specific notice requirements which apply to a reduction in rating. The procedural safeguards afforded to the Veteran in a reduction case are set forth under 38 C.F.R. § 3.105(e) and must be followed by VA before issuing a final rating reduction. Brown v. Brown, 5 Vet. App. 413, 418 (1993). These specific notice requirements take precedence over the more general notice requirements found in the VCAA. Zimick v. West, 11 Vet. App. 45, 51 (1998). VA regulations provide for specific notice requirements in instances where a reduction in disability rating is considered. 38 C.F.R. § 3.105(e). When a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. 38 C.F.R. § 3.105(e). This proposed rating should set forth all of the material facts and reasons for the proposed reduction. Id. The Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id. The circumstances under which a disability rating may be reduced are limited and carefully circumscribed by regulations promulgated by VA. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a veteran’s rating without observing applicable laws and regulations, such a rating is void ab initio and it will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Here, the Veteran’s combined disability rating was 20 percent prior to the reduction and the 10 percent after the reduction. Additionally, there is no evidence to suggest that the RO issued a rating reduction proposal, which set forth the material facts and reasons for the proposed reduction. Thus, the notice requirements for the reduction of the rating for the Veteran’s TBI were not satisfied. See 38 C.F.R. § 3.105(e). The Board finds that the RO failed to meet the procedural requirements for reduction of the schedular disability rating from 10 percent to noncompensable for the Veteran’s service-connected TBI. Therefore, the reduction was improper and is void ab initio, and the Veteran’s 10 percent disability rating for the service-connected TBI is restored. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) The Veteran asserts that a rating in excess of 10 percent is warranted for his service-connected TBI. See VA Form 21-529EZ, November 2017; see also NOD, September 2018. In December 2017, the Veteran was afforded a VA TBI examination. See C&P Exam, December 2017. The examiner noted, “[A]fter careful review of the available medical records, service records, Va [sic] records, history and exam, I do not see sufficient objective evidence of events, signs/symptoms to warrant a likely diagnosis of TBI. Report of medical exam 11/13/84- questions have you ever had or now have frequent severe headaches, dizziness, memory loss/amnesia, head injury, loc. No is marked to all. The Veteran notes that he had encephalitis. A TBI is diagnosed when an individual has at least one of the following: a loss of consciousness for less than or equal to 30 minutes, a loss of memory for events immediately before (retrograde amnesia) or events after the accident (post-traumatic amnesia) for less than or equal to 24 hours, any altercation in mental state at the time of injury (dazed, disoriented, confused), the presence of focal neurological deficits, or if given, a GCS score of greater than or equal to 13.s. A diagnosis of encephalitis (brain infection) does not equate to TBI. Because records in the c-file are limited in providing objective evidence to suggest that a TBI was incurred in or caused by service, a diagnosis cannot be rendered at this time.” Id. Notwithstanding the examiner’s finding that the Veteran did not experience a TBI, the examiner also noted no current residual manifestations of a TBI A review of the medical evidence of record reflects that the evidence of record at the time of the December 2017 examination included the Veteran’s service treatment records (STRs), which note that (1) in May 1979, the Veteran sustained a head injury after losing consciousness following a marching session; (2) in January 1982, the Veteran reported having a head injury; (3) in February 1982, the Veteran was found unconscious and examination revealed a small abraded laceration in the back of the his head; and (4) in February 1984, the Veteran reported frequent or severe headaches, dizziness or fainting spells, and a head injury. As the examiner failed to address the above evidence suggesting a TBI, did not address the November 2016 VA examiner’s determination of a TBI, and appears to base his opinion solely on a November 1984 response, the Board finds that the December 2017 VA examiners opinion has very low probative value and is inadequate for VA rating purposes. At issue here is not severance of service connection but rather an assessment of the presence and severity of any residuals of the injury of whatever nature occurred in service. As such, a new examination is necessary in order to determine the current severity of the Veteran’s service-connected disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the current severity of his residuals of TBI or the in-service injury or treatment for encephalitis in February 1982. The electronic claims files, to include a copy of this REMAND, must be made available to and be reviewed by the examiner. To the extent possible, the examiner(s) should describe all manifestations and symptoms of the Veteran’s service-connected residuals of TBI, including any cognitive, psychological, and physiological manifestations and symptoms. All necessary testing, as per Diagnostic Code 8045, should be accomplished, as appropriate. A full and complete rationale for all opinions expressed must be provided. The examiner should provide findings for all opinions and conclusions reached. If the examiner determines that an opinion or conclusion cannot be made without resort to mere speculation, the clinician should explain why. In other words, simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so. 2. Readjudicate the Veteran’s claims after ensuring that any other appropriate development deemed warranted is complete. If any benefit sought on appeal remains denied, provide the Veteran and his Representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time for response. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.