Citation Nr: 21015667 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-20 340 DATE: March 18, 2021 ORDER Restoration of a 20 percent rating for low back degenerative disc disease, effective July 5, 2016, is granted. REMANDED A rating higher than 70 percent for unspecified bipolar disorder is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The agency of original jurisdiction (AOJ) failed to provide due process before reducing the Veteran’s rating for low back degenerative disc disease from 20 percent to 10 percent. CONCLUSION OF LAW The rating reduction from 20 percent to 10 percent for low back degenerative disc disease, effective July 5, 2016, was improper. 38 U.S.C. §§ 1155, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to May 1990, from January 1993 to October 1995, and from July 1999 to December 1999. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a regional office of the Department of Veterans Affairs (VA). In December 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is included in the claims file. Restoration of Previous Rating for Degenerative Disc Disease The Veteran seeks restoration of a 20 percent rating for degenerative disc disease (previously rated as low back disorder), which was in effect from February 1, 2012 to July 5, 2016. The Board finds that the rating reduction was improper, and restoration is thus warranted. VA must observe certain procedural safeguards before reducing or discontinuing compensation payments for service-connected disabilities. In such cases, VA must prepare a proposed rating setting forth material facts and reasons for the reduction, notify the beneficiary, allow them 60 days to submit additional evidence to show that compensation payments should continue at their present level, and inform them of their right to request a predetermination hearing within 30 days from the date of the notice. 38 C.F.R. § 3.105(e), (i); see also O’Connell v. Nicholson, 21 Vet. App. 89, 92 (2007). If VA fails to comply with the applicable regulations, the rating reduction will be considered “void ab initio” (void from the beginning) and set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999). In its August 2016 rating decision, the AOJ decreased the Veteran’s low back rating from 20 percent to 10 percent. This decision also reduced his combined evaluation for compensation from 90 percent to 80 percent, effective July 5, 2016. As such, the notice provisions of 38 C.F.R. § 3.105 apply in this case. Review of the record shows that the AOJ did not prepare a proposed rating setting forth material facts and reasons for the reduction prior to issuing the August 2016 rating decision. The AOJ did not notify the Veteran of any proposed reduction, allow him 60 days to submit additional evidence, or inform him of his right to request a predetermination hearing. Because the AOJ failed to provide due process prior to issuing the August 2016 decision, the rating reduction is void ab initio and must be set aside. Greyzck, 12 Vet. App. at 292. The 20 percent rating for low back degenerative disc disease is restored. REASONS FOR REMAND The Veteran seeks a rating higher than 70 percent for unspecified bipolar disorder (previously rated as mood disorder). He also asserts that he is unemployable due to the combined effects of this disorder, as well as his service-connected low back disorder with associated lower extremity radiculopathy. The Board finds that the increased rating claim for bipolar disorder and the TDIU claim are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Remand to the AOJ for additional development is warranted for multiple reasons. First, the most recent VA treatment records on file are nearly 4 years old. These records reflect that the Veteran was receiving VA mental healthcare as of March 2017. Additional relevant treatment records are likely outstanding. On remand, the AOJ should obtain them and associate them with the claims file. Second, in December 2020, the Veteran testified that he continues to receive disability benefits through the Social Security Administration (SSA). The most recent SSA records on file were received in January 2014. The AOJ should request any additional outstanding records from the SSA, and associate them with the file. Finally, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, in February 2016. His hearing testimony and recent correspondence reflect additional periods of employment since then. Although the work history he provided in February 2021 is informative, an updated VA Form 21-8940, with information regarding monthly earnings since 2016, would aid the Board in making a fully-informed decision on his TDIU claim. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2017 to the present, and associate them with the claims file. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Ask the Veteran to complete an updated VA Form 21-8940, Application for Increased Compensation Based on Unemployability. (Continued on the next page)   4. Readjudicate the Veteran’s claims. If any claim remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.