Citation Nr: A21018751 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 200609-93019 DATE: November 23, 2021 ORDER The discontinuance of the award of a total disability rating based on individual unemployability (TDIU), from August 1, 2020, was not proper, and the appeal is granted. The discontinuance of the award of eligibility to for Dependents Educational Assistance (DEA), from August 1, 2020, was not proper, and the appeal is granted. FINDING OF FACT The Veteran was not provided notice of a proposed action to reduce entitlement to a TDIU, nor was he given 60 days to present additional evidence to show that a TDIU should remain in effect. CONCLUSIONS OF LAW 1. The discontinuance of a TDIU, effective August 1, 2020, was not proper, and the criteria for restoration of a TDIU, from August 1, 2020, have been met. 38 C.F.R. § 3.105(e). 2. The discontinuance of DEA benefits, effective August 1, 2020, was not proper, and the criteria for restoration of DEA benefits, from August 1, 2020, have been met. 38 C.F.R. § 3.105(e). REASONS AND BASES FOR FINDING AND CONCLUSIONS In a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) terminated the Veteran's TDIU and DEA benefits, effective August 1, 2020. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. By way of history, in an August 2018 rating decision a TDIU was granted effective May 31, 2011 and, as a result, DEA benefits were established the same date. In December 2019, the Veteran submitted a VA Form 21-4140 Employment Questionnaire wherein he reported that since June 1, 2017 he had been self-employed 10-15 hours per weeks as a tax consultant. In a May 2020 rating decision, the AOJ discontinued entitlement to TDIU and DEA benefits, effective August 1, 2020. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the veteran's condition). Initially, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The Veteran will be notified of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. 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 of the Veteran of the final rating action expires. See 38 C.F.R. § 3.105(e). It is clear that in terminating entitlement to a TDIU, effectively reducing his total evaluation, the AOJ did not comply with § 3.105(e) in informing the Veteran of a proposed action or allowing him to present addition evidence within a 60-day period. As the Veteran's TDIU was terminated without affording him proper notice and affording him to the opportunity to present additional evidence, in compliance with § 3.105(e), the Board finds that the termination of a TDIU was improper, and entitlement to a TDIU will be reinstated effective August 1, 2020. When a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). With regard to DEA benefits, VA law provides that DEA benefits pursuant to 38 U.S.C. Chapter 35, may be paid to dependents of a veteran who meet certain basic eligibility requirements. As pertinent to this appeal, basic eligibility for DEA exists if the veteran has a permanent, total service-connected disability. A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The AOJ discontinued entitlement to DEA benefits on the basis of the discontinuation of the TDIU award. Given that the TDIU award is being restored, the Board finds that the Veteran is entitled to restoration of basic eligibility for DEA benefits for the period effective August 1, 2020. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.