Citation Nr: 21006688 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-08 689 DATE: February 4, 2021 ORDER Restoration of a 100 percent rating for service-connected bronchial asthma is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is moot. FINDINGS OF FACT 1. The reduction of the 100 percent rating for the Veteran’s bronchial asthma was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 2. Entitlement to a TDIU is moot as the Veteran is in receipt of a total rating for his bronchial asthma and does not have any other service-connected disabilities. CONCLUSIONS OF LAW 1. The reduction of the rating for bronchial asthma from 100 percent to 60 percent was not proper and is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344. 2. The restoration of a 100 percent rating for bronchial asthma renders moot the appeal for a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1987 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2014 and January 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board notes in May 2020, the Veteran filed a motion to correct the September 2019 hearing transcript. In December 2020, the undersigned VLJ determined that the suggested changes were not within the meaning of 38 C.F.R. § 20.716 and the motion was denied. The Board notes that this appeal stems from an informal claim for a permanent total disability rating filed by the Veteran in May 2011 and throughout the appeal period the Veteran has indicated that he continues to seek a permanent total rating. Although the Board is restoring the Veteran’s total rating, the issue of whether the total rating should be made permanent has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the Board does not have jurisdiction over the claim and this matter is referred to the AOJ for appropriate action. The Veteran has submitted multiple requests to have his appeal advanced on the docket due to financial hardship. However, as the appeal is now before the Board and is being decided in full, this request is moot. 1. Whether the reduction in evaluation of bronchial asthma from 100 percent to 60 percent effective January 1, 2015, was proper. The Veteran contends that the reduction of his total rating for his bronchial asthma was improper. Specifically, the Veteran contends that the evidence of record does not show sustained improvement in his asthma. By way of history, the Veteran was granted a 100 percent rating for his bronchial asthma is a June 2002 rating decision. This rating was continued in October 2007 and December 2009 rating decisions. In the October 2014 rating decision on appeal, the RO reduced the Veteran’s rating from 100 percent to 30 percent effective January 1, 2015. A January 2017 rating decision increased the Veteran’s rating to 60 percent effective January 1, 2017. Subsequently, in a May 2019 rating decision, the Veteran’s 60 percent disability rating was assigned an earlier effective date of January 1, 2015, the date his total rating was reduced. As a preliminary matter, the Board notes that the Veteran has contended that the focus should be on when he was reduced from 100 percent to 30 percent, not when his rating was increased to 60 percent during the appeal process in January 2017. See May 2020 correspondence. In a reduction claim, the focus is on the fact that the rating was reduced; the rating that it was reduced to is irrelevant as a reduction claim generally does not include a claim for an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Thus, the Board will focus its analysis on the reduction itself rather than the rating that was assigned after the reduction. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 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 and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). Additionally, pursuant to 38 C.F.R. § 3.105(i), if a timely predetermination request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10-day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. Here, the requirements pursuant to 38 C.F.R. § 3.105(e) and (i) were properly carried out by the RO. On August 8, 2011, the RO notified the Veteran of a proposed rating reduction, setting forth all material facts and reasons for the reduction, namely that the Veteran’s October 2009 and July 2011 VA examinations showed sustained improvement in his asthma. At that time, the RO instructed the Veteran to submit within 60 days any additional evidence to show that his rating should not be reduced, and to request a predetermination hearing if desired. In August 2011, the submitted argument and requested a predetermination hearing. On May 20, 2013, the Veteran was notified that his predetermination hearing was scheduled for June 19, 2013. The predetermination hearing was held on the scheduled date and was conducted by a rating veteran service representative (RVSR) at the Seattle Regional Office who did not participate in the proposal to reduce the Veteran’s rating, which was conducted by the Salt Lake City Regional Office. The RO took final action, pursuant to the RVSR’s decision, to reduce the disability rating in an October 2014 rating decision, and the rating was reduced from 100 to 30 percent, effective January 1, 2015. The RO informed the Veteran of this decision by letter dated October 14, 2014. Based on these facts, the Board finds that the procedure for discontinuing the Veteran’s 100 percent evaluation for his asthma was appropriately completed in this case in accordance with 38 C.F.R.§ 3.105(e) and (i). The Board acknowledges that the Veteran has contended that he did not receive a predetermination hearing because it was cancelled. See October 2018 correspondence; September 2019 hearing transcript. The Veteran’s contentions appear to be in reference to 1) an October 20, 2014 letter which informed the Veteran that his predetermination hearing was scheduled for December 2, 2014, and 2) an October 23, 2014 letter that informed the Veteran the December 2014 hearing was scheduled in error and was cancelled. Pursuant to 38 C.F.R.§ 3.105(i), the Veteran only is entitled to one predetermination hearing, which as noted above, was held in June 2013. Thus, the December 2014 hearing was scheduled in error and the RO correctly and promptly cancelled it once the error was discovered. Thus, cancellation of the December 2014 hearing does not violate the procedural requirements under 38 C.F.R.§ 3.105(i). The Board also acknowledges that the Veteran has indicated that his predetermination hearing was not recorded. See August 2017 correspondence. However, a review of the record shows that the June 2013 hearing was recorded and a transcript was created. A review of the transcript does indicate that the first attempt to record the hearing was unsuccessful, but during the second successful attempt to record, the hearing officer elicited the information provided during the unrecorded portion so that the hearing transcript contained all relevant testimony. See June 2013 hearing transcript. Reducing a rating also brings concurrent substantive requirements that must be followed. A rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. Where a rating has been in effect for five years or more, a reduction is allowed only if there is material improvement that is reasonably certain to be maintained under the ordinary conditions of work and life. 38 C.F.R. § 3.344(a). Moreover, if the disease is subject to temporary or episodic improvement, such as bronchial asthma, reduction may not be based on any one examination, except where all the evidence clearly warrants a conclusion that sustained improvement has been demonstrated. It must also be determined whether the examination reports reflecting such improvement are based upon thorough examinations. The reduction in rating must be based upon review of the entire history of the Veteran’s disability and supported by the evidence on file at the time of the reduction. Moreover, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also may be considered. If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The 100 percent rating for bronchial asthma was reduced effective January 1, 2015. As of this date, the 100 percent rating had been in effect for more than five years. As the 100 percent rating had been in effect for more than five years, the added protections of § 3.344(a) and (b) are applicable. For the reasons that follow, the Board finds that the rating reduction is void ab initio. The October 2014 rating decision that reduced the disability rating for bronchial asthma to 30 percent did not properly discuss the application of the above regulations to the current appeal. Although the RO noted that the evidence showed sustained improvement in the Veteran’s asthma, the RO did not make a specific determination as to whether the examinations supporting the reduction were full and complete. Further, the RO did not make a finding that it was reasonably certain that the sustained improvement of the Veteran’s condition would be maintained under the ordinary conditions of life. The rating decision also does not mention or cite 38 C.F.R. § 3.344. Instead, the decision only mentions that there has been sustained improvement in the disability and explains why the disability meets the criteria for a 30 percent rating. The Board further notes that based on the evidence reviewed, it cannot find that the evidence clearly warrants the conclusion that sustained improvement was demonstrated. Since the decision that reduced the rating for bronchial asthma from 100 percent to 30 percent did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void ab initio. In light of the foregoing, restoration of the 100 percent evaluation is warranted. Brown v. Brown, 5 Vet. App. 413 (1993). 2. Entitlement to a TDIU. The Veteran seeks entitlement to a TDIU. A TDIU is provided where the combined schedular rating for service-connected disabilities is less than total (less than 100 percent). 38 C.F.R. § 4.16(a). Generally, the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. Nonetheless, receipt of a 100 percent evaluation for a service-connected disability does not always moot the issue of entitlement to a TDIU. Although no additional disability compensation may be paid when a total disability rating is already in effect, a separate award of a TDIU predicated on a single disability other than that which was the basis for the 100 percent rating may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the above exception is not applicable. The Veteran only has one service-connected disability, bronchial asthma, which is now rated at 100 percent for the entire appeal period. Thus, there is no other service-connected disability for which a TDIU can be predicated on. Consequently, the restoration of the 100 percent rating for bronchial asthma has rendered the issue of a TDIU moot. (Continued on the next page)   To the extent that the Veteran has contended that a TDIU is warranted based on other disabilities, such as a back disability, the Board notes that no other disabilities are service-connected and thus, they cannot form the basis of a TDIU. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate 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.