Citation Nr: 21063653 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 20-26 645 DATE: October 15, 2021 ORDER The reduction in rating for residuals of prostate cancer from 100 percent to 40 percent effective November 1, 2018 is improper and is void ab initio is granted. FINDING OF FACT On August 18, 2018, the Agency of Original Jurisdiction (AOJ) reduced the rating for residuals of prostate cancer without fully complying with applicable regulations; therefore, the rating reduction is void ab initio. CONCLUSION OF LAW The August 2018 rating reduction for residuals of prostate cancer from 100 percent to 40 percent effective November 1, 2018 was improper and is void ab initio have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.344, 4.1, 4.2, 4.3, 4.10, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1965 to February 1967, including verified service within the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 18, 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that at the time of a Statement of the Case (SOC) issued on March 9, 2020, the AOJ concluded that a claim for a rating of total disability based upon individual unemployability based upon service-connected disorders (TDIU) could not be found as part and parcel of the claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board concurs with this conclusion and declines jurisdiction of the claim, because Rice only allows for an inferred claim for a TDIU in claims for increased ratings, while this claim challenges the propriety of a rating reduction. Alternatively, the Board determines that by restoring the Veteran's 100 percent rating, the Board is awarding a full grant of the benefits sought on appeal, the 100 percent rating renders the claim for a TDIU moot, and there is no evidence within the record that the Veteran may be entitled to special monthly compensation for any reason. See contra Bradley v. Peake, 22 Vet. App. 280 (2008); 38 U.S.C. § 1114(s). As a result, even if the Board could assert jurisdiction over a claim for TDIU pursuant to Rice, it is rendered moot for the reasons to be further discussed below. This appeal has been advanced on the Board's docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The reduction in rating for residuals of prostate cancer from 100 percent to 40 percent effective November 1, 2018 is improper and is void ab initio. By way of background, the Veteran has been service connected for residuals of prostate cancer since September 21, 2016. As of that date, the Veteran was in receipt of a 100 percent rating for that disorder. The Veteran's prostate cancer was subsequently examined by a VA examiner on February 13, 2018. See VA Exam ( Feb. 13, 2018 ). The next day, the Veteran was issued a rating decision that communicated a proposal to reduce the rating from 100 percent to 40 percent. See Rating Decision (Feb. 14, 2018). On August 18, 2018, the Veteran was issued a rating decision that confirmed that his rating for prostate cancer residuals would be reduced to 40 percent effective November 1, 2018the next first day of the month proceeding 60 days after the rating decision. See 38 C.F.R. § 3.105(e), infra. A claim stemming from a rating reduction action is a claim for restoration of the prior rating not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). There are certain procedures that are required when a rating is reduced and the lower rating would result in a reduction or discontinuance of compensation payments being made. See 38 C.F.R. § 3.105(e). Specifically, when reduction of a rating is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). When the AOJ proposed to reduce the ratings, the AOJ mailed a rating decision to the latest address of record. The Board finds that the February 2018 notification letter comprises notice of the reduction, as well as information to the Veteran as to the procedures for the presentation of evidence, the right to a hearing, and representation options. Subsequently, the effective date of the reduction was articulated in the August 2018 rating decision and was set not earlier than the requisite 60 days after the notice of reduction. The Veteran never requested a hearing, and also made no particular argument as to why the previous rating for prostate cancer should not have been reduced at that time. Meanwhile, the AOJ took care to associate VA treatment records as of August 17, 2018. See VA Medical Records (rec'd Aug. 17, 2018). The Board ultimately concludes that in reducing the rating as recounted in this case, the AOJ complied with the procedures outlined under 38 C.F.R. § 3.105(e). With respect to disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Notwithstanding all of the above, neither the examiner nor the AOJ discussed whether the Veteran's claimed prostate cancer residuals had demonstrated sustained improvement or whether the evidence made it reasonably clear that the improvements would be maintained under the ordinary conditions of life, as required by 38 C.F.R. § 3.344. Specifically, the rating decision stated that the Veteran's prostate cancer residuals would be reduced to 40 percent disabling. The Veteran's submitted evidence suggests that he may require absorbent material to be changed at least four times daily. See VA Form 9 (rec'd June 9, 2020). This would suggest a potential entitlement to a rating in excess of 40 percent. See 38 C.F.R. § 4.115a. The Board concludes that that lay statement from the Veteran is not inconsistent with the most recent medical evidence of record, which merely states that the Veteran should wear absorbent material "as directed as needed." See 38 C.F.R. § 4.115a; VA Medical Record (Jan. 21, 2020) (rec'd Mar. 7, 2020). For the reasons above, and after resolving all reasonable doubt in the Veteran's favor, the Board ultimately determines that the rating reduction did not adequately detail the reasons for the reduction, such that the Veteran would understand what evidence would be sufficient to show that compensation payments should be continued at their present level. The Board has reviewed the pertinent evidence of record, and the Board cannot escape the conclusion that it is at least evenly balanced to suggest that the claimed disorder is entitled to a rating in excess of the proposed rating after reduction. As a result, the Board concludes that the AOJ reduced the rating without observing the protections in place under 38 C.F.R. § 3.344. Accordingly, the August 18, 2018 rating reduction for residuals of prostate cancer is void ab initio and the 100 percent rating shall be restored effective November 1, 2018. The reversal of the reduction is a full grant of the sought benefit on appeal, and as stated above, because the reversal of the reduction restores the previous 100 percent rating, any potential entitlement to a TDIU is rendered moot; meanwhile the evidence of record does not reasonably infer any claim of SMC. See Rice v. Shinseki, supra; Bradley v. Peake, supra; 38 C.F.R. § 4.16; 38 U.S.C. § 1114(s). The Board accordingly concludes that there is no further doubt to resolve. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.