Citation Nr: A21017186
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 210716-172627
DATE: October 25, 2021

ORDER

The appeal is dismissed.

FINDING OF FACT

The June 2020 rating decision, from which the Veteran filed the instant notice of disagreement, was only a proposal to reduce the rating for prostate cancer with radical prostatectomy with hypogonadism from 100 percent disabling to 10 percent, and not a final decision on the matter.

CONCLUSION OF LAW

The Board does not have jurisdiction over the issue of the proposal to reduce the rating for prostate cancer with radical prostatectomy with hypogonadism from 100 percent to 10 percent. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.105(e), 20.104.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1964 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) from a June 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) under the modernized appeal system known as the Appeals Modernization Act (AMA). In July 2020, the Veteran timely appealed such rating decision to the Board by filing a Decision Review Request: Board Appeal (Notice of Disagreement (VA Form 10182).

Proposal to reduce the rating for prostate cancer with radical prostatectomy with hypogonadism from 100 percent to 10 percent.

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. §§ 7104; 7105; 38 C.F.R. § 20.104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.

Additionally, where action by the rating agency would result in the reduction or discontinuance of compensation payments, a rating initially proposing the reduction or discontinuance will be prepared setting out all material facts and reasons for the proposed action. The beneficiary of the compensation payments must be notified at his or her latest address of record of the contemplated action, furnished detailed reasons therefore, and be given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level.  Thereafter, if a reduced rating is found to be warranted, a final rating action will be issued.  38 C.F.R. § 3.105(e).

In the instant case, the AOJ issued the June 2020 rating decision proposing a reduction in the rating for the Veteran's service-connected prostate cancer with radical prostatectomy with hypogonadism from 100 percent to 10 percent. The Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) (VA From 10182) in July 2020 disagreeing with the proposed finding. However, as discussed above, the June 2020 rating decision was only a required notification to the Veteran of the proposed action and not a final decision on the matter.  Rather, in an August 2021 rating decision, the AOJ reduced the rating for the Veteran's prostate cancer with radical prostatectomy with hypogonadism from 100 percent disabling to 10 percent disabling, effective November 1, 2021. Therefore, no appeal could be initiated from the June 2020 rating decision as it was only a proposal and not a final decision on the matter. Consequently, the Board lacks jurisdiction over the appeal and, as such, it must be dismissed. 

However, the Veteran is advised that, if he disagrees with the reduction implemented in the August 2021 rating decision, he may file a Supplemental Claim, Higher-Level Review, or Appeal to the Board by filing the appropriate form, which were provided in connection with notice of the August 2021 rating decision, within one year of the issuance of such decision. 

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Waite

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.