Citation Nr: 21021963 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-22 889 DATE: April 14, 2021 ORDER The reduction of the evaluation for service-connected residuals, postoperative prostate cancer from 100 percent to 40 percent, effective May 1, 2016, was improper; the 100 percent disability rating is restored, effective May 1, 2016. The discontinuance of special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s), effective May 1, 2016, was improper; SMC at the housebound rate is restored, effective May 1, 2016. FINDINGS OF FACT 1. The Veteran was in receipt of a 100 percent disability rating for his service-connected residuals, postoperative prostate cancer March 31, 2011, to May 1, 2016, a period of more than five years. 2. The January 2016 rating decision fails to provide notice of, and consider, the provisions of 38 C.F.R. § 3.344. 3. As a result of the Board’s decision with respect to the propriety of the reduction from 100 percent to 40 percent for the Veteran’s service-connected residuals, postoperative prostate cancer, since May 1, 2016, the Veteran has been in receipt of a 100 percent disability rating for his service-connected residuals, postoperative prostate cancer, and his other service-connected disabilities have been independently rated as 60 percent disabling or more. CONCLUSIONS OF LAW 1. Since the reduction of the rating for service-connected residuals, postoperative prostate cancer from 100 percent to 40 percent was not in accordance with applicable law and regulations, the criteria for restoration of the 100 percent rating are met effective May 1, 2016. 38 U.S.C. §§ 1155 (2018); 38 C.F.R. §§ 3.105, 3.344 (2020). 2. The criteria for restoration of SMC at the housebound rate are met, effective May 1, 2016. 38 U.S.C. § 1114(s) (2018); 38 C.F.R. § 3.350 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1965 to December 1967. Rating Reduction Congress has provided that a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an agency of original jurisdiction (AOJ) reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Initially, where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record 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 to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). As an initial matter, the Board finds that the AOJ satisfied the procedural requirements of 38 C.F.R. § 3.105(e) through a November 2015 letter. By way of background, in an April 2011 rating decision, the AOJ granted service connection for prostate cancer and assigned a 100 percent evaluation, effective March 31, 2011. Following a routine VA examination in August 2015, the AOJ issued a November 2015 rating decision proposing to decrease the Veteran’s evaluation for prostate cancer from 100 percent to 40 percent. In a January 2016 rating decision, the AOJ effectuated the proposed reduction and assigned a 40 percent evaluation for the Veteran’s residuals of postoperative prostate cancer, effective May 1, 2016, based on his voiding dysfunction. The AOJ assigned a 40 percent evaluation based on a daytime voiding interval less than one hour as documented at the August 2015 VA examination. 38 C.F.R. § 4.115a. For reductions in ratings to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). In regard to disability ratings in effect for a period of 5 years or more, like here, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. See 38 C.F.R. § 3.344(c). Where a veteran’s schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344(a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. Because the Veteran’s 100 percent disability rating had been in effect for more than five years, 38 C.F.R. § 3.344(a) and (b) are applicable. However, the January 2016 rating decision fails to provide notice of, or reflect consideration of, the provisions of 38 C.F.R. § 3.344. Specifically, the January 2016 rating decision does not address whether the August 2015 VA examination report was as full and complete as the examination upon which the original rating was established. Additionally, the January 2016 rating decision fails to discuss whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a); Kitchens v. Brown, 7 Vet. App. 320 (1995). The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio as such omissions are error and not in accordance with the law. See Greyzck, supra; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Dofflemyer, 2 Vet. App. 277. Accordingly, the Veteran’s 100 percent disability rating for his service-connected residuals, postoperative prostate cancer is restored, effective May 1, 2016. SMC SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). In a February 2012 rating decision, the AOJ granted SMC at the housebound rate, effective March 31, 2011. When the Veteran’s prostate cancer was reduced from 100 percent to 40 percent by a January 2016 rating decision, the AOJ also discontinued SMC at the housebound rate, effective May 1, 2016. As a result of the Board’s decision with respect to the propriety of the reduction from 100 percent to 40 percent for the Veteran’s service-connected residuals, postoperative prostate cancer, since May 1, 2016, the Veteran has been in receipt of a 100 percent disability rating for his service-connected residuals, postoperative prostate cancer. Furthermore, the Board notes that his other service-connected disabilities have been independently rated as 60 percent disabling or more since May 1, 2016. For example, his service-connected ischemic heart disease has been rated as 60 percent disabling since May 1, 2015. Thus, the criteria under 38 U.S.C. § 1114(s) are met, and SMC based on statutory housebound criteria is granted, effective May 1, 2016. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.