Citation Nr: 20052941 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-28 195 DATE: August 10, 2020 ORDER Restoration of the 100 percent evaluation for service-connected Lyme disease, effective April 1, 2014, is granted. Entitlement to an increased disability evaluation for Lyme disease, currently rated as noncompensable, is dismissed. FINDING OF FACT 1. The March 2013 letter notifying the Veteran of the proposed rating reduction for Lyme disease, from 100 percent to noncompensable (0 percent), effective April 1, 2014, due to a failure to report for a VA examination, was deficient. 2. The RO’s decision to reduce the Veteran’s evaluation for service-connected Lyme disease, from 100 percent to noncompensable (0 percent) as of April 1, 2014 was not carried out in accordance with applicable VA law and is void ab initio. CONCLUSIONS OF LAW 1. The reduction of the disability evaluation for the Veteran’s service-connected Lyme disease, from 100 percent disabling to noncompensable (0 percent disabling) was not proper, and the 100 percent disability evaluation is restored from April 1, 2014. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.126, 4.88B, Diagnostic Code 6319 (2019). 2. The appeal of the claim of entitlement to an increased disability evaluation for Lyme disease is moot by virtue of the Board’s decision herein, restoring a 100 percent disability evaluation for Lyme disease, effective April 1, 2014, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104(a), 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from November 1984 to August 1992 and from October 1994 to January 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in which the RO decreased the rating for Lyme disease to noncompensable (0 percent), effective April 1, 2014. The Veteran’s claim for restoration of a 100 percent disability rating for Lyme disease was remanded by the Board for issuance of a statement of the case in January 2019; a statement of the case was issued in July 2019 and this appeal followed. In addition, a supplemental statement of the case as to the issue of entitlement to an increased disability rating for Lyme disease was most recently issued in July 2019. 1. Whether the reduction in disability evaluation for service-connected Lyme disease, from 100 percent to 0 percent, effective April 1, 2014, was proper. 2. Entitlement to an increased disability evaluation for Lyme disease, currently rated as noncompensable. Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. See 38 C.F.R. § 3.655. The relevant language of 38 C.F.R. § 3.655(b) provides that when a claimant fails to report for an examination scheduled in conjunction with, among other things, a claim for increase, “the claim shall be denied” without review of the evidence of record. A claim for a higher initial rating is an “original compensation claim” and not a “claim for increase” for purposes of 38 C.F.R. § 3.655(b). See Turk v. Peake, 21 Vet. App. 565, 570 (2008). The provisions of 38 C.F.R. § 3.655(c) apply to running awards, when the issue is continuing entitlement. In accordance with 38 C.F.R. § 3.655(c), when a claimant fails to report for a “reexamination.” payment for the disability at issue will be discontinued or, if a minimum evaluation is established by the Diagnostic Code or there is an evaluation protected under 38 C.F.R. § 3.951(b), reduced to the lower evaluation. Here, the Veteran was granted service connection for Lyme disease in a July 2007 rating decision. In December 2012, the RO noted that a review VA examination was required, and the Veteran was scheduled for a VA examination in January 2013. The Board observes that, in a March 2013 rating decision, the RO proposed reducing the disability rating for the Veteran’s Lyme disease from 100 percent to noncompensable, based on the Veteran's failure to report for a VA examination scheduled in January 2013. See 38 C.F.R. § 3.655(a), (c). In March 2013, the Veteran was notified of the proposed action, the reasons and bases therefor, and was given the required 60 days to present additional evidence and to request a hearing. See 38 C.F.R. § 3.655(c); see also 38 C.F.R. § 3.105(e). The RO subsequently took action to enforce the rating reduction in a January 2014 rating decision, with an effective date of April 1, 2014. See 38 C.F.R. § 3.655(c). In May 2014, the Veteran submitted a letter to the RO, contesting the reduction in the rating for his Lyme disease and explaining why he did not report for the January 2013 VA examination because he did not receive notice of the VA examination; the Veteran indicated that the notice of the VA examination was mailed to the wrong address. The Veteran noted that he informed VA of the change of address 3 years prior, but that “VA Disability Office” sent the examination letter to his prior address. Review of the claims file reflects that a December 2012 letter notified the Veteran that the VA medical facility was requested to schedule a VA examination to evaluate the severity of his service-connected Lyme disease; the mailing address shown on the letter does not match the Veteran’s known mailing address, at that time. Moreover, the letter indicated that the VA medical facility would notify him of the date, time, and place of the examination; the Board observes that no written notice of the VA examination was associated with the claims file; no date or time for the VA examination was noted in the claims file. The Board observes that the Veteran expressed his willingness to report for a VA examination; the Veteran reported for the March 2015 VA examination, which was scheduled in response to the Veteran’s May 2014 notice of disagreement. The Veteran essentially asserts that the reduction in the disability rating for his service-connected Lyme disease was improper based on the reasons of good cause noted above. The Board agrees. Pursuant to 38 C.F.R. § 3.655(a) and (c), the payment (i.e., rating) for a disability may be discontinued or reduced if (1) an examination is necessary to continue entitlement and (2) the claimant, without good cause, fails to report to the scheduled VA examination. The existing regulatory framework provides that, to discontinue or reduce a Veteran’s rating, VA must follow the requirements of section 3.655(a), which direct a determination of whether the Veteran had good cause to miss the VA examination, before VA can enforce action to discontinue or reduce a disability rating under § 3.655(c). See generally Turk v. Peake, 21 Vet. App. 565, 569 (2008); Engelke v. Gober, 10 Vet. App. 396, 399 (1997) (whether a claimant has established good cause is a factual determination). Thus, in a section 3.655 analysis, a showing of good cause (under section 3.655(a)) would negate VA’s decision to discontinue or reduce a disability rating (under section 3.655(c)). Under those guidelines, in the case of a claimant who fails to report for a reexamination, “VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued.” 38 C.F.R. § 3.655(c)(1). This pretermination notice “shall include the prospective date of discontinuance, the reason therefor, and a statement of the claimant's procedural and appellate rights.” Id. Following the issuance of this notice, “the claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination” or to present evidence regarding the disability for which the reexamination was scheduled. Id. If the claimant fails to respond to the pretermination notice within 60 days (or if any submitted evidence does not establish continued entitlement to the benefit), then “payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination or the date of last payment, whichever is later.” 38 C.F.R. § 3.655(c)(2). Conversely, if, in the 60 days following the issuance of the pretermination notice, “notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred.” 38 C.F.R. § 3.655(c)(3). In such cases, the “reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment.” Id. As discussed, the Veteran was scheduled for a VA examination for his service-connected Lyme disease in January 2013; the Veteran failed to report for the examinations and was notified of the proposed reduction in March 2013. The accompanying notification letter indicated that the proposal to reduce the Veteran’s rating was based on his failure to report for a routine examination, and noted that the Veteran had 60 days to submit evidence of his current condition. However, the notification letter failed to inform the Veteran that he could request to be rescheduled for his missed VA examination within the 60-day window. In light of these facts, the Board finds that March 2013 notice of the proposed reduction was deficient on its face as it failed to comply with the provisions set forth in 38 C.F.R. § 3.655(c)(1). Such omission is error and not in accordance the law. As such, the Board finds that the reduction of the Veteran’s disability rating for Lyme disease was improper and the January 2014 rating decision effectuating the reduction is void ab initio. See Greyzk v. West, 12 Vet. App. 288, 292 (1999) (holding that where VA reduces a Veteran's disability rating without following applicable VA regulations, the reduction is void ab initio). The 100 percent disability rating for Lyme disease is restored, effective April 1, 2014. Significantly, as the reduction in the Veteran’s rating was not appropriate under section 3.655, VA failed to acknowledge the relevant regulatory instructions and protections that govern the reduction of a rating in effect for five years or more as set forth in 38 C.F.R. § 3.344. A review of the record shows that the issue for the Veteran’s Lyme disease was also adjudicated as an increased rating claim in the July 2015 statement of the case, instead of whether the reduction of the Veteran’s 100 percent disability rating for his service-connected Lyme disease was proper. By doing so, VA improperly shifted the burden of proof from VA to the Veteran (to establish the evidentiary basis for why the reduction was not warranted and for a higher rating based the staged ratings for each knee). See Brown v. Brown, 5 Vet. App. 413, 421 (1993) (when VA reduces a rating (under section 3.344), it bears the burden to establish that the rating reduction was warranted). Thus, VA erred when it failed to consider and apply the provisions of section 3.344. Under 38 U.S.C. § 7105(d)(5), the Board may dismiss any appeal which fails to allege a specific error in fact or law in the determination being appealed. As the Board finds that the January 2014 rating decision, which reduced the Veteran’s disability rating for his service-connected Lyme disease from 100 percent to noncompensable, was improper and restored the 100 percent disability rating, effective April 1, 2014, the issue of entitlement to a compensable disability rating for Lyme disease is moot. Thus, the appeal as to this issue is dismissed. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.