Citation Nr: 23048971 Decision Date: 09/06/23 Archive Date: 09/06/23 DOCKET NO. 16-57 500 DATE: September 6, 2023 ORDER As the discontinuance of the separate 20 percent rating for left shoulder instability effective July 1, 2021, was improper, the appeal to restore the 20 percent rating, effective July 1, 2021, is granted. REMANDED Entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability is remanded. FINDING OF FACT The Veteran was not provided a predetermination hearing in response to notice of the proposed discontinuance of the separate 20 percent rating for left shoulder instability despite his timely request. ? CONCLUSION OF LAW The discontinuance of the separate 20 percent rating for left shoulder instability effective July 1, 2021, was improper; the criteria for restoration of the separate 20 percent rating for left shoulder instability, effective July 1, 2021, have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Marine Corps from January 1977 to January 1981 and from February 1986 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) regional office (RO). Procedurally, a July 2015 rating decision denied the Veteran's May 2015 claim for an increased evaluation for his service-connected left shoulder pathology and the Veteran perfected an appeal. See May 2015 Veteran's Application for Disability Compensation (VA Form 21-526EZ); July 2015 Rating Decision; July 2016 Notice of Disagreement (NOD) (VA Form 21-0958); October 2016 Statement of the Case (SOC); November 2016 Substantive Appeal (VA Form 9). See also 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and time limits for initiating and perfecting an appeal of a claim in VA's legacy system). Thereafter, in a May 2018 decision, the agency of original jurisdiction (AOJ) awarded a separate 20 percent evaluation for left shoulder instability. See May 2018 Rating Decision. In January 2020, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. ? Thereafter, in August 2020, the Board remanded the Veteran's appeal for a higher rating for his service-connected left shoulder disorder to the AOJ for additional development. During the course of the AOJ's development of the claim, the AOJ determined that a clear and unmistakable error had been made in its award of the separate 20 percent evaluation for the left shoulder instability. See January 2021 Deferred Rating Decision (VA Form 21-6789) (noting that the May 2018 rating decision "appears to have erred when it granted a separate evaluation for instability of the left shoulder"). Accordingly, in a January 2021 decision, the AOJ proposed to discontinue the separate evaluation for left shoulder instability. See January 2021 Rating Decision. It subsequently effectuated the reduction in April 2021. See April 2021 Rating Decision (discontinuing the separate 20 percent evaluation for left shoulder instability, effective July 1, 2021). In October 2021, the AOJ notified the Veteran that the Veterans Law Judge (VLJ) who conducted the January 2020 hearing and who issued the August 2020 remand was no longer at the Board. See October 2021 VA Notification Letter. The Veteran elected to have another hearing, and, in July 2023, he testified at a virtual hearing before the undersigned VLJ. See December 2021 Hearing Options Form. A copy of the transcript has been associated with the claims file. 1. As the discontinuance of the separate 20 percent rating for left shoulder instability effective July 1, 2021, was improper, the appeal to restore the 20 percent rating, effective July 1, 2021, is granted. 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. Additionally, there are specific procedural requirements applicable to rating reductions. If a reduction in the rating is considered warranted and the lower rating would result in a reduction or discontinuance of the compensation payments currently being made, the RO must issue a rating proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The RO must notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level. Id. Additionally, the beneficiary must be notified as to the right to a predetermination hearing. 38 C.F.R. § 3.105 (i). Furthermore, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). It is VA's burden to comply with all procedural and substantive provisions to sustain the rating reduction. Failure to follow any one of these requirements will render that reduction action void ab initio, "from the beginning", and the rating will be restored to its previous level. Greyzck v. West, 12 Vet. App. 288, 292 (1999). In the present case, as the discontinuance of the separate 20 percent evaluation for left shoulder instability changed the Veteran's overall compensation rating, the special procedural requirements outlined in 38 C.F.R. § 3.105 subsections (e) and (i) are for application. See January 2021 and April 2021 Rating Decision Codesheets (reflecting that the Veteran's total combined schedular evaluation was reduced from 90 percent to 80 percent following discontinuance of the separate 20 percent evaluation for left shoulder instability). As discussed above, a January 2021 rating decision proposed to discontinue the separate evaluation for left shoulder instability. In a letter dated that same month, the AOJ informed the Veteran that the proposed rating reduction would reduce his combined disability rating and overall compensation benefits. See January 2021 VA Notification Letter. In addition, the Veteran was instructed that he could request a personal hearing to present evidence or argument. See id. (further indicating that, if the Veteran requested a predetermination hearing within 30 days from the date of the letter, the Veteran's current 90 percent combined evaluation would continue until the hearing was held and the hearing testimony reviewed). Two weeks after issuance of the proposed rating decision, the Veteran's representative submitted a statement reflecting that the Veteran "is requesting a Pre-Determination Hearing for the proposed reduction" of the evaluation of his service-connected left shoulder disability. See February 2021 Representative Correspondence. Although the Veteran requested a predetermination hearing within 30 days of receipt of notice of the proposed reduction, there is no evidence indicating that the AOJ undertook any efforts to schedule a hearing. Instead, as noted above, the AOJ took final action in April 2021, discontinuing the separate 20 percent evaluation for left shoulder instability, effective July 1, 2021. See April 2021 Rating Decision. Because the AOJ reduced the Veteran's rating without taking any action to schedule him for his requested predetermination hearing despite his timely request, the procedural requirements under 38 C.F.R. § 3.105(i) were not properly followed, and the Veteran was denied due process when his monthly benefits were reduced. Thus, the rating reduction is void ab initio, and the separate 20 percent evaluation for left shoulder instability is restored, effective July 1, 2021. See Greyzck, 12 Vet. App. at 292 (1999). REASONS FOR REMAND Although the Board regrets the additional delay, further development is necessary prior to adjudication of the Veteran's claim for an increased rating for his service-connected left shoulder pathology. 1. Entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability is remanded. The record indicates that outstanding, relevant non-VA medical records exist but have not been obtained. In this regard, the Veteran testified at his July 2023 hearing that he has undergone physical therapy for his left shoulder condition, which was authorized through VA's Veterans Choice Program, by which VA, through the Veterans Health Administration (VHA), authorizes eligible veterans to receive hospital care and medical services through non-VA healthcare providers. See July 2023 Board Hearing Transcript (testifying that "VA has assisted [him] with a... sports physical therapist in the civilian community" and reflecting clarification from the Veteran's representative that the Veteran has "gone to physical therapy through, it sounds like, the VA Choice Program"). However, it is not clear whether complete copies of these records have been associated with the claims file, as there is no indication that the AOJ made any attempt to obtain them. See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the Veteran to attempt to obtain them); 38 C.F.R. § 3.159 (c)(2) (indicating that records from non-VA facilities providing examination or treatment at VA expense are considered records in the custody of a federal department or agency). See also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (holding the VA's duty to assist includes "obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance."). Accordingly, given the evidence of record indicating the existence of outstanding, relevant private medical treatment records, on remand, the AOJ must obtain all records of VA-authorized treatment, and must attempt to obtain any additional outstanding relevant records of private treatment for the Veteran's left shoulder condition. See id. The matters are REMANDED for the following action: 1. Implement the Board's decision restoring the separate 20 percent rating for left shoulder instability, effective July 1, 2021. 2. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file, to include the complete records of VA authorized, non-VA treatment (e.g., VA Choice). ? 3. Contact the Veteran and request that he identify any relevant outstanding private treatment records. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. 4. After completing all of the above, upon receipt of all additional records and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.