Citation Nr: 21031600
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 16-02 237
DATE: May 24, 2021

ORDER

As the reduction from a 20 percent rating to a noncompensable rating for right knee instability is void ab initio, restoration of the 20 percent rating is granted. 

 

FINDING OF FACT

The June 2014 proposed reduction action did not inform the Veteran of his right to present additional evidence or request a predetermination hearing.  

CONCLUSION OF LAW

The reduction of the disability rating for right knee instability from 20 percent to zero percent was not proper and is void ab initio.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.105. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 2000 to June 2004.

The case is on appeal from a September 2014 rating decision, which reduced the rating for instability, right knee, from 20 percent to 0 percent, effective December 1, 2014.  In his notice of disagreement (NOD), the Veteran disagreed with the disability rating reduction.  

The December 2015 statement of the case (SOC) phrased and adjudicated the issue as entitlement to an increased rating.  In cases where a veteran's disability rating is reduced, the issue is whether the reduction of the disability rating was proper.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) ("this is a reduction case, not an increase case").  The Court has advised that the issue is not to be phrased as "entitlement to an increased rating, including whether the veteran is entitled to restoration of a previous rating."  See Green v. Nicholson, 21 Vet. App. 512 (2006) (citing Dofflemyer, 2 Vet. App. at 279-80).  Accordingly here, the issue on appeal concerns the reduction of disability.  At present, the issue of entitlement to an increased disability rating for this disability is not within the scope of the current appeal.  

In a January 2016 substantive appeal (VA Form 9), the Veteran requested a Board video hearing.  However, in February 2017, the Veteran's representative withdrew the hearing request

Whether the reduction from a 20 percent rating to a noncompensable rating for right knee instability was proper. 

Legal Criteria

Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C. § 1155; 38 C.F.R. § 3.105(e).  For ratings that have been in effect for five years or more, reduction is warranted when reexamination discloses sustained material improvement.  38 C.F.R. § 3.344(a), (b); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).  In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work.  Faust v. West, 13 Vet. App. 342, 350 (2000).

Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons.  The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore.  The veteran must be allowed an opportunity to participate in a personal hearing, with the request received within 30 days of the notice provided, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level.  38 C.F.R. § 3.105(e), (i).  After the allotted period, if no additional evidence has been submitted, final rating action will be taken, and the rating 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 expires.  38 C.F.R. § 3.105(e).

Analysis

In August 2007, the Veteran was initially assigned a 10 percent rating for right knee instability effective June 20, 2007.  In October 2010, the Veteran was assigned a 20 percent rating for right knee instability effective September 2, 2010.  

In June 2014, the RO proposed to reduce the rating for the Veteran's right knee instability to a noncompensable rating.  In a September 2014 rating decision, the 20 percent rating for the Veteran's right knee instability was reduced to a noncompensable rating effective December 1, 2014.  

The Board finds that the reduction from 20 percent to a noncompensable rating is void ab initio for failing to follow all due process requirements. In this regard, the RO mailed the Veteran notice of the proposed reduction in June 2014 to his then address of record.  

However, the notice did not inform him that he had (1) 60 days to present additional evidence to show that compensation payments should be continued at the current level and (2) that he had 30 days to request a predetermination hearing.  See 38 C.F.R. § 3.105(e), (i).  

(Continued on the next page)

 

Instead, the accompanying notification letter stated that the Veteran would receive a separate letter regarding the proposed rating reduction.  However, any indication that the Veteran received a separate letter detailing the notice requirements is absent from file.  Thus, because advance notice was not given in regard to this action, the reduction is void ab initio. 

As the RO did not issue a proposed notice of the reduction informing the Veteran of his rights to present additional evidence or request a predetermination hearing, the reduction to a noncompensable rating is void ab initio.  Therefore, restoration of the 20 percent rating for right knee instability effective September 2, 2010, is warranted.  This outcome is required based on the RO's failure to follow the applicable due process steps in 38 C.F.R. § 3.105.  This outcome should not be interpreted as a decision as to the correctness of the reduction itself.

 

 

Corey Bosely

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Gray, 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.