Citation Nr: A21019366
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 211025-193538
DATE: December 6, 2021

ORDER

The issue of the propriety of a proposed reduction in rating of posttraumatic stress disorder (PTSD) from 70 percent to 50 percent in a September 2021 notice is dismissed.

FINDING OF FACT

As the reduction in rating of service-connected PTSD from 70 percent to 50 percent in a September 2021 notice was only a proposed action not subject to appeal, there remains no matter in controversy.

CONCLUSION OF LAW

The Board lacks jurisdiction over any appeal of a proposal to reduce the rating of PTSD from 70 percent to 50 percent in a September 2021 notice and the criteria for dismissal of any appeal have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1949 to September 1952.

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).

A September 2021 rating decision proposed to reduce the rating for service-connected PTSD from 70 percent to 50 percent.  While the Veteran sought to appeal that rating decision, that was not a final determination by the Agency of Original Jurisdiction (AOJ).  The rating decision referred to the reduction as proposed.  Further, the rating decision (and notification letter) informed the Veteran that he had 60 days from the date of notification to provide additional evidence why the proposed reduction should not be implemented and informed the Veteran what would occur if the proposed reduction were to be finalized.

In October 2021, the Veteran submitted VA Form 10182, Notice of Disagreement, and requested a Direct Review of the September 2021 rating decision.  An appeal to the Board consists of a notice of disagreement timely filed in response to a decision by the AOJ.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.202.  For reductions in rating, the AOJ is required to issue a rating decision proposing the reduction and setting forth all material facts and reasons, notify the beneficiary of the contemplated action and furnish detailed reasons therefore, and allow 60 days for the presentation of additional evidence to show that payments should continue at the present level.  Thereafter, if a reduction is found to be warranted, a final rating action will be issued.  38 C.F.R. § 3.105(e).

In the present case, the AOJ issued the September 2021 rating decision proposing reducing the rating for the Veteran's PTSD.  The Veteran filed a VA Form 10182 Notice of Disagreement in October 2021 disagreeing with the proposed reduction. However, the September 2021 rating decision was only a required notification to the Veteran of a proposed action, it was not a final decision on the merits of the PTSD ratings.

Therefore, no appeal could be initiated from the September 2021 rating decision on the issue of the reduction of rating for PTSD because it was only a proposal and not a decision on the merits.  The Board does not have jurisdiction until a decision is issued by the AOJ and timely appealed by the Veteran.  38 U.S.C. § 7105.  As the reduction in rating for the service-connected PTSD from 70 percent to 50 percent was only a proposed action not subject to appeal, there remains no matter in controversy. Accordingly, the appeal must be dismissed for lack of jurisdiction.  38 U.S.C. §§ 7104(a), 7105(d)(5).

The AOJ subsequently issued a November 2021 decision that effectuated the reduction in rating from 70 percent to 50 percent for PTSD, to be effective February 1, 2022.  However, the October 2021 notice of disagreement was received prior to the November 2021 decision and thus cannot constitute a valid NOD to that subsequent decision because a notice of disagreement must be received after the issuance of a decision.  The Board's dismissal of the attempted appeal of the September 2021 does not affect the right of an eligible person to file a proper notice of disagreement to the November 2021 rating decision that effectuated the reduction in rating and constitutes an AOJ decision.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mondesir, Eric

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.