Citation Nr: A25106909 Decision Date: 12/11/25 Archive Date: 12/11/25 DOCKET NO. 250212-508462 DATE: December 11, 2025 ORDER The discontinuance of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from January 1, 2024, was not proper; restoration of the TDIU beginning January 1, 2024, is therefore granted. The discontinuance of entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) January 1, 2024, was improper; restoration of SMC(s) beginning January 1, 2024, is therefore granted. FINDING OF FACT 1. In a January 2024 rating decision, the Agency of Original Jurisdiction (AOJ) discontinued the Veteran's TDIU, effective January 1, 2024. 2. The evidence of record failed to show by clear and convincing evidence that the Veteran had earned income for the calendar year 2022. CONCLUSION OF LAW 1. The discontinuance of TDIU from January 1, 2024, was improper; the criteria for restoration of the award of TDIU from January 1, 2024, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 3.343(c). 2. The discontinuance of entitlement to special monthly compensation under 38 U.S.C. § 1114(s)(1) was improper; the criteria for restoration of entitlement to special monthly compensation under 38 U.S.C. § 1114(s)(1) are met. 38 U.S.C. §§ 1114(s)(1), 5109A, 5112; 38 C.F.R. §§ 3.105, 3.155(d)(2), 3.350(i)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to September 1976 and from November 1990 to June 1991. The Board recognizes the Veteran's service to our country, and the sacrifices it necessarily entailed. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2025 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO continued its discontinuance of TDIU effective from January 1, 2024. In the February 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2025 agency of original jurisdiction (AOJ) decision. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. TDIU By way of history, TDIU was originally granted in an August 2021 rating decision, effective August 19, 2020, and special monthly compensation based on housebound criteria was also established effective August 19, 2020. See Rating Decision, August 20, 2021. The VA proposed discontinuing TDIU in a September 2023 letter. See Correspondence, September 19, 2023. Subsequently, TDIU was discontinued effective January 1, 2024; special monthly compensation based on housebound was also discontinued January 1, 2024. See Rating Decision, January 3, 2024. The Veteran requested Higher Level Review (HLR) in January 2024 and a March 2024 HLR rating decision continued the discontinuances. See Rating Decision, March 11, 2024. The Veteran filed a March 2024 supplemental claim, via VA Form 20-0995, and the January 2025 rating decision on appeal again continued the discontinuances. See Rating Decision, January 28, 2025. Restoration of TDIU effective January 1, 2024 As noted above, the Veteran was awarded TDIU in an August 2021 rating decision, effective August 19, 2020. The Veteran asserts that the discontinuance was improper and he is entitled to restoration of his TDIU from January 1, 2024. See Statement in Support of Claim, April 16, 2024. In September 2023, the AOJ notified the Veteran that information from the Social Security Administration indicated he had earned wages above the poverty threshold for the calendar year 2022. See Correspondence, September 19, 2023. The Veteran was asked to complete VA Form 21-4140, Employment Questionnaire, and a VA Form 21-4138, Statement in Support of Claim, to explain the earnings for calendar year 2022. Prior to reducing a veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Thus, 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 the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). When reduction in the rating of a service-connected disability is contemplated and the lower rating 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 beneficiary must be notified of the contemplated action and furnished a detailed explanation. The beneficiary must be 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). In advance of written notice concerning proposed actions under section (e), the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. See 38 C.F.R. § 3.105(i). The same procedural requirements under 38 C.F.R. § 3.105(i) apply when a TDIU is to be discontinued pursuant to 38 C.F.R. § 3.105(h). The procedural notice requirements as set forth pursuant to 38 C.F.R. § 3.105(i) were complied with. As noted above, the record reflects that the Veteran was notified of the proposed discontinuance of his TDIU in the September 2023 correspondence from VA. See Correspondence, September 19, 2023. Under 38 C.F.R. § 3.343(c)(1), the reduction of a total rating based on individual unemployability must be based on a determination that actual employability is established by clear and convincing evidence. The "clear and convincing" standard requires that capacity for work be proven to a "reasonable certainty" but not necessarily be "undebatable." As noted above, the basis of the discontinuation was documentation from the Social Security Administration that the Veteran had income in 2022 that exceeded the poverty threshold for that year. Turning to that evidence, the 2022 document is titled "SSA-1099" which is officially known as the Social Security Benefit Statement, issued annually by the Social Security Administration (SSA) to report the total gross benefits paid to recipients of retirement or disability payments. See SSA/SSI Letter, April 16, 2024. The document was intended to put the Veteran on notice that his benefits may be taxable on his federal income tax return. However, the document is not considered to be a reflection of wages earned. Therefore, as the Veteran's substantially gainful employability has not been established by clear and convincing evidence, the discontinuance of the Veteran's TDIU from January 1, 2024, was not proper and restoration is warranted. 38 C.F.R. § 3.343(c)(1). No other arguments have been made or raised by the evidence of record, the benefit sought is being granted in full and further discussion of the issue is unnecessary. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SMC(s) As discussed above, the discontinuation of the Veteran's TDIU was improper and restoration of the ancillary benefit is warranted. (Continued on the next page) ? Accordingly, as the Veteran's TDIU has been restored from January 1, 2024, the criterion for restoration of SMC(s)(1) under 38 C.F.R. § 1114(s)(1), is similarly warranted from January 1, 2024. Frederic P. Gallun Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ardalan, Nina 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.