Citation Nr: A21017255 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 200228-71455 DATE: October 26, 2021 ORDER The appeal as to whether the July 2019 proposal to reduce the disability rating assigned to the Veteran's service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent was proper, is dismissed. FINDING OF FACT The July 2019 proposal to reduce the disability rating assigned to the Veteran's service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent was not an adjudicative determination by the Department of Veterans Affairs (VA). CONCLUSION OF LAW The appeal as to whether the July 2019 proposal to reduce the disability rating assigned to the Veteran's service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent must be dismissed as a matter of law. 38 U.S.C. § 7105; 38 C.F.R. § 3.2500; Shipley v. Shinseki, 24 Vet. App. 458, 461 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to May 1999. The rating decision on appeal was issued in July 2019. In the Veteran's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option; therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. The Board notes that the Veteran perfected separate AMA appeals for service connection for post-traumatic stress disorder (PTSD), anxiety, sleep apnea, tinnitus and prostate cancer, as well as an increased rating for a low back disability to include entitlement to a total disability based on individual unemployability (TDIU), which are all currently certified to the Board and awaiting adjudication. As such, these claims will be addressed in a separate decision. Lastly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). Dismissal In February 2020, the Board received the Veteran's NOD wherein he expressed disagreement with the July 2019 rating decision on appeal that initially proposed to reduce the disability rating assigned to the Veteran's service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent. Relevant to proposed reductions, VA must provide notice to a Veteran when a reduction in his overall disability rating is being considered including a preliminary rating decision outlining the reason for the proposed reduction. 38 C.F.R. § 3.105. Notably, the United States Court of Appeals for Veterans Claims (Court) has held that the AOJ's decision to defer a ruling until a later date does not constitute a final decision by the AOJ because all factual and legal questions relevant to the claim have been reserved for adjudication at a later date. Shipley v. Shinseki, 24 Vet. App. 458 (2011). In other words, a decision that merely refers to future action (i.e., a proposed action) is not a determination by the AOJ and, therefore, the disagreement with such a proposal does not place the issue in appellate status before the Board. Here, as noted in the July 2019 and September 2019 letters to the Veteran, the July 2019 rating decision was not a final decision and was merely issued to provide information to the Veteran regarding his rights and notice of possible future action. As such, the decision did not constitute a final decision by the agency and the Veteran's February 2020 VA Form 10182 does not place the propriety of the proposed rating reduction in appellate status. Accordingly, the appeal must be dismissed. The Board observes in passing that the AOJ issued a rating decision in July 2020 that did not reduce the disability rating assigned to his service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent. Thereafter, at his May 2021 Board hearing, the Veteran expressed acknowledgement of this decision, agreeing that the matter was resolved. (Continued on Next Page) Since the Board hearing, in September 2021, the AOJ has again proposed to reduce the disability rating assigned to the Veteran's service-connected primary open-angle glaucoma of both eyes from 50 percent to 20 percent; this proposed action remains pending with the AOJ. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.