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BVA--Gimme back my rating

From: Posted by NOD
Category: -
Date: 09/26/08

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Citation Nr: 0821474 Decision Date: 07/01/08 Archive Date: 07/14/08 DOCKET NO. 05-38 511 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUE Propriety of a September 10, 2004 reduction of a 30 percent rating for hepatitis C. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from July 1971 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 10, 2004 rating decision of the RO in Indianapolis, Indiana, which reduced the veteran's rating for hepatitis C from 30 percent to noncompensable, effective September 10, 2004. The veteran requested a Decision Review Officer hearing in this claim in April 2004, following receipt of the rating decision proposing the rating reduction. The RO failed to provide this hearing; however the veteran withdrew his request in May 2006. The Board will proceed. The Board notes that the RO severed service connection for hepatitis C in a September 2006 rating decision, with an effective date of January 1, 2007 as amended by an October 2006 rating decision. The veteran's representative has asked the Board to consider the appropriateness of this action; however, there is no communication in the file from the veteran within one year of the September 2006 rating decision and the representative's brief is dated in May 2008. The Board has no jurisdiction to act on this matter at the present time. See Manlincon v. West, 12 Vet. App. 238 (1999). FINDING OF FACT The RO failed to comply with the procedural requirements for reducing the veteran's disability rating, to include proper notification of the proposal to reduce the disability rating and giving him an opportunity to submit evidence. CONCLUSION OF LAW The RO failed to satisfy the procedural requirements governing the reduction in ratings prior to effectuating its rating decision of September 10, 2004 implementing the proposed reduction. 38 C.F.R. § 3.105(e) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As noted in the Introduction, the RO severed service connection for hepatitis C in a September 2006 rating decision, effective date of January 1, 2007. The Board has considered what impact, if any, this has on the issue of the propriety of the September 10, 2004 reduction of a 30 percent rating for hepatitis C, which is the matter currently on appeal. In this regard, the Board believes that the question of whether a reduction was warranted as of September 2004 remains an issue ripe for review, regardless of the subsequent severance of service connection in January 2007. Therefore, the Board finds that the issue currently on appeal is not moot, and the Board will proceed to consider the propriety of the reduction. VA regulations provide that where reduction in evaluation of a service-connected disability 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 is to be prepared setting forth all material facts and reasons. See 38 C.F.R. § 3.105(e) (2007). The law also requires that the veteran be given 60 days to present additional evidence showing that compensation should be continued at the present level. Id. In this case, the above procedural requirements were met. The RO issued a rating decision in March 2004, which proposed the reduction in the disability rating for the veteran's service-connected hepatitis C. The veteran was advised of the proposed reduction on March 23, 2004. In response, the veteran requested a hearing before a Decision Review Officer. The RO issued a rating decision on September 10, 2004, implementing the proposed reduction, effective from September 10, 2004. The veteran was notified of this reduction by letter dated that day. However, regulations further provide that the effective date of the reduction is the last day of the month in which a 60- day period from the date of notice of the final rating action implementing the reduction expires. See 38 C.F.R. § 3.105(e) (2007). Accordingly, making the reduction effective from the date of the rating decision reducing his rating was improper under the regulation. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when an 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); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Murincsak v. Derwinski, 2 Vet. App. 363, 369 (1992). Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In light of the Board's conclusion that the regulations governing reductions were not followed, the veteran's rating is restored to 30 percent, as of September 10, 2004. See id. As the Board is able to grant this claim in full on procedural grounds, actual consideration of the merits is not warranted. As the veteran's rating for hepatitis C has been restored, the Board finds that any error related to the VCAA is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Restoration of a 30 percent rating for hepatitis C, effective September 10, 2004, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals This is a classic example of the RO attempting to take away the Vet's rating. They are not well versed in this and usually screw it up. In this case the vet had appealed the action and ended up having the BVA restore the rating. This is rare and doesn't happen very frequently. But it does happen ,which is why Mr. Murphy wrote a book of laws concerning it.

The Art of Pee Dvd

From: theartofpee
Category: General Info
Date: 08/21/09

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From: justbigasses
Category: General Info
Date: 08/21/09

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Last changed: 08/21/09