Citation Nr: A21016872 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 200730-100271 DATE: October 18, 2021 ORDER Restoration of a 50 percent disability rating for service-connected headaches, effective February 5, 2020, is granted. FINDING OF FACT The evidence of record does not clearly show that there were improvements in the Veteran's ability to function under the ordinary conditions of life and work in light of his headache disability at the time of the reduction. CONCLUSION OF LAW The reduction in the rating for adjustment disorder from 50 percent to 30 percent effective February 5, 2020 was improper, and restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.343, 3.444, 4.130, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to April 1969. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board notes that, shortly after the Veteran filed his notice of disagreement in the current matter, a separate August 2020 rating decision granted the Veteran entitlement to a total disability individual unemployability (TDIU) effective January 6, 2020. This decision does not affect that entitlement or benefits associated therewith. Rather, this decision only addresses the Veteran's disagreement with an earlier April 2020 rating decision that reduced the Veteran's disability rating for service connected headaches. Whether the reduction of the disability rating for the Veteran's service-connected headaches from 50 percent disabling to 30 percent disabling, effective February 5, 2020, was proper The Veteran appeals the reduction in his disability for service-connected headaches. An April 2020 rating reduced the Veteran's disability rating for service-connected headaches from 50 percent disabling to 30 percent disabling, effective February 5, 2020. The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence showing that compensation should be continued at the present level and to request a predetermination hearing provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, a 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 veteran expires. 38 C.F.R. § 3.105 (e), (i). When VA reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio, "from the beginning." See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In this case, the procedural requirements under 38 C.F.R. § 3.105 (i) for the reduction of the disability rating from 50 percent to 30 percent were not properly followed. As such, the reduction is void ab initio. Specifically, the AOJ failed to issue a rating decision proposing the reduction and setting forth all material facts and reasons for the reduction. Effectively, the AOJ failed to issue an adequate initial proposal to reduce the disability rating from 50 percent to 30 percent, and instead issued a rating decision finalizing the reduction. This deprived the Veteran of his due process rights. Assuming arguendo, that the procedural requirements for the proposed reduction were met, the reduction in this case is still void ab initio because not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1994); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The RO did not analyze whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Instead, the RO analyzed the reduction of the 50 percent rating just as it would a claim for an increased rating: by focusing on what the evidence must show for a rating of 50 percent, focusing primarily on the results of a January 2019 VA examination. Because the RO in this case failed to make the appropriate findings with regard to whether actual improvement was found with respect to the Veteran's adjustment disorder during the appeal period, the Board must find that the reduction is void ab initio in this case; the 50 percent evaluation is therefore restored. See 38 C.F.R. § 3.344; Dofflemyer, 2 Vet. App. at 281-82. In summary, as the AOJ did not satisfy the procedural requirements set forth in See 38 C.F.R. § 3.105 (e), the reduction in this case is void ab initio. Further, the evidence does not demonstrate actual improvement in the Veteran's ability to function under the ordinary conditions of life. See Murphy, 26 Vet. App. at 517, see also Faust, 13 Vet. App. at 350. In fact, the evidence, to include statements by the Veteran and his spouse, at a minimum gives rise to a reasonable doubt on the question. See Brown, 5 Vet. App. at 419; see also 38 C.F.R. §§ 3.102, 4.2. Accordingly, restoration of the 50 percent disability rating for service-connected headaches is granted, effective from February 5, 2020, the date of reduction. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.