Citation Nr: 21029406 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-24 984 DATE: May 13, 2021 ORDER Entitlement to restoration of disability benefits for the Veteran's service-connected diabetes suspended from March 1, 1992 to June 30, 1998 is granted. FINDING OF FACT 1. The presumption of regularity having been rebutted, the evidence shows the Veteran did not receive notice of the March 1992 decision suspending his benefits, rendering the decision non-final. 2. The notification requirements of 38 C.F.R. § 3.655 (c)(1) were not complied with; thus, suspension of benefits for diabetes was inappropriate and his benefits are restored. CONCLUSION OF LAW The criteria for entitlement to restoration of suspended disability benefits for diabetes from March 1, 1992 to June 30, 1998 are met. 38 U.S.C. § 5103; 38 C.F.R. §§ 3.103, 3.105, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1980 to April 1989. This matter is on appeal to the Board of Veterans' Appeals (Board) from an August 2017 rating decision. A hearing was held by the undersigned Veterans Law Judge in September 2020. The Veteran contends there was clear and unmistakable error (CUE) in the March 1992 decision suspending benefits for his diabetes because the due process requirements of 38 C.F.R. § 3.105(e) were not complied with. Specifically, he contends he did not receive notice of an upcoming VA examination in October 1991, a proposal to suspend benefits due to the failure to report for an examination in December 1991, and the decision to suspend benefits in March 1992. To support his contentions, he has submitted evidence that (1) he was not residing at the address used by the VA at the time the letters were mailed; and (2) postal service irregularities, both nationally and locally, existed at the time. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. As it pertains to the March 1992 decision, the failure for the Veteran or his representative to receive notice of a decision can render a decision non-final. Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim will be considered to be pending if VA has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision) (citing to Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc)); Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (finding that a rating decision did not become final because no SOC was issued after a NOD was timely submitted); Hauck v. Brown, 6 Vet. App. 518, 519 (1994). Regarding the Veteran's own mailing address at the time, in his hearing and other correspondence, he has explained that upon discharge in 1989, he initially lived in Kingston, TN, but moved to Oak Ridge, TN in May 1989. This is confirmed by June 1989 correspondence in the claims file informing VA of the change of address to Oak Ridge. In November 1989, he moved to Loudon, TN. In May 1991, the Veteran moved to Leesburg, VA. He explained that at the time of the move, he established care at the Martinsburg VA, and was told he did not need to inform anyone else of his new address at VA. The October and December 1991 and March 1992 letters were sent to the Kingston, TN address. There is a presumption that "the Secretary properly discharged his official duties by mailing a copy of a decision to the last known address of the appellant . . . on the date that the decision was issued." Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting Woods v. Gober, 14 Vet. App. 214, 220 (2000)). In order for this presumption to attach, VA must provide notice to the latest address of record for the claimant. Crain v. Principi, 17 Vet. App. 182, 186 (2003). This presumption is not absolute and may be rebutted with "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Id. For the purposes of this appeal, the presumption of regularity extends to the officials at the RO who were responsible for notifying the Veteran of the March 1992 decision. See Woods, 14 Vet. App. 214 at 220-21; see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). The mere assertion of nonreceipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the decision. Id.; Davis v. Principi, 17 Vet. App. 29, 37 (2003). However, the presumption of regularity may be rebutted where there is (1) evidence that VA used an incorrect address on the mailing, or (2) evidence that the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time of the decision. See Clarke, 21 Vet. App. at 134 (noting that "VA's use of an incorrect address is often consequential to delivery. Thus, we have found the existence of clear evidence to rebut the presumption of regularity when VA addressed communications to a wrong street name, wrong street number, or wrong ZIP code in circumstances indicating that such errors were consequential to delivery."); Crain, 17 Vet. App. at 187 ("VA's use of an incorrect address for a claimant constitutes the 'clear evidence' needed to rebut the presumption of regularity of mailing."); Davis, 17 Vet. App. at 37 (holding that to rebut presumption of regularity in mailing, the appellant must establish both that mailing was returned as undeliverable and that there were other possible and plausible addresses available to VA). Once the presumption is rebutted, the Secretary has the burden to show that the decision was mailed in the appropriate manner "or that the appellant actually received a copy of the decision." Sthele v. Principi, 19 Vet. App. 11, 19 (2004); see Fluker v. Brown, 5 Vet. App. 296, 298 (1993). Here, evidence sufficient to rebut the presumption is present. A review of the evidence of record shows that VA did not have notification of a new address in Leesburg, VA at the time of the issuance of the 1991 and 1992 letters. However, VA did have notice that the Kingston, TN address was incorrect as of June 1989. Thus, there is evidence that VA used an incorrect address on the mailing, which is sufficient to rebut the presumption of regularity. The burden then shifts to VA; however, there is no other evidence of record indicating the decision was mailed in the appropriate manner or that the Veteran actually received a copy of the decision. Thus, the March 1992 decision suspending benefits remained pending. The benefits were restored in a December 1998 decision as of July 1, 1998, the date the Veteran submitted correspondence requesting restoration. Therefore, the relevant inquiry is whether the suspension of benefits from 1992 to 1998 was proper, and the Board will adjudicate the claim de novo.] Pursuant to 38 C.F.R. § 3.655(a) and (c), which has remained substantively unchanged since 1992, the payment (i.e., rating) for a disability may be discontinued or reduced if (1) an examination is necessary to continue entitlement and (2) the claimant, without good cause, fails to report to the scheduled VA examination. The existing regulatory framework provides that, to discontinue or reduce a veteran's rating, VA must follow the requirements of section 3.655 (a), which direct a determination of whether the Veteran had good cause to miss the VA examination, before VA can enforce action to discontinue or reduce a disability rating under § 3.655(c). See generally Turk v. Peake, 21 Vet. App. 565, 569 (2008). Thus, in a section 3.655 analysis, a showing of good cause (under section 3.655 (a)) would negate VA's decision to discontinue or reduce a disability rating (under section 3.655(c)). Under those guidelines, in the case of a claimant who fails to report for a reexamination, "VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued." 38 C.F.R. § 3.655(c)(1). This pretermination notice "shall include the prospective date of discontinuance, the reason therefor, and a statement of the claimant's procedural and appellate rights. Id. Following the issuance of this notice, "the claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination" or to present evidence regarding the disability for which the reexamination was scheduled. Id. If the claimant fails to respond to the pretermination notice within 60 days (or if any submitted evidence does not establish continued entitlement to the benefit), then "payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination or the date of last payment, whichever is later." 38 C.F.R. § 3.655(c)(2). Conversely, if, in the 60 days following the issuance of the pretermination notice, "notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred." 38 C.F.R. § 3.655(c)(3). In such cases, the "reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment." Id. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Here, the notice requirements of § 3.655(c)(1) were not complied, with as VA used an incorrect address to send the pretermination notice, and the Veteran was not notified. As such, the suspension is void ab initio, and the initial 20 percent rating is restored from March 1, 1992 to June 30, 1998. A.C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.