Rating Reductions

[Ricky]

http://www.va.gov/vetapp08/files2/0813448.txt

THE ISSUE

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Where the reduction in evaluation of a service-connected

disability or employability status 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 will be

prepared setting forth all material facts and reasons. The

beneficiary will be notified at his or her latest address of

record of the contemplated action and furnished detailed

reasons therefore and given 60 days for the presentation of

additional evidence to show that compensation payments should

be continued at their present level. 38 C.F.R. § 3.105(e)

(2007); see also 38 U.S.C.A. § 5112((6) (West 2002).

In May 2002, the RO notified the veteran that it proposed to

reduce the 20 percent evaluation assigned for his service-

connected right knee disability to 10 percent, and advised

the veteran he had 60 days to submit additional evidence or

to request a hearing. The veteran submitted additional

information in addition to requesting a hearing. The hearing

was held at the RO in August 2002.

Where, as here, the veteran submits additional evidence and a

predetermination hearing is held, a written notice of the

final action shall be issued to the beneficiary and his or

her representative, setting forth the reasons therefore and

the evidence upon which it is based. Where a reduction of

benefits is found warranted following consideration of any

additional evidence submitted, the effective date of such

reduction shall be the last day of the month in which a 60-

day period from the date of notice to the beneficiary of the

final action expires. 38 C.F.R. § 3.105(i)(2)(i) (2007).

By letter dated October 28, 2002, the RO notified the veteran

that it was reducing his disability rating for his service-

connected right knee disability from 20 percent to 10 percent

based upon the evidence of record. The effective date of the

reduction was December 1, 2002.

The Board finds that the effective date of the notice is

noncompliant with the requirements in 38 C.F.R.

§ 3.105(i)(2)(i). The effective date of the reduction was

only 33 days after notice was given to the veteran, less than

the 60 days required by the regulations. The Board notes

that the rating decision setting forth the reasons for the

reduction and establishing the effective date of December 1,

2002, was actually dated September 27, 2002. Had notice of

the rating action been promptly issued, the assigned

effective date would have complied with the regulatory

requirements. However, because notice of the reduction was

not sent until a month later, the effective date assigned in

the rating decision did not afford the appropriate time

period before the reduction took effect.

Because the RO failed to comply with the notice provisions of

38 C.F.R. § 3.105, the reduction of the veteran's disability

rating for his right knee disability is void ab initio. The

Court of Appeals for Veterans Claims has consistently held

that, where a RO reduces a veteran's disability rating

without following the applicable regulations, the reduction

is void ab initio. See Kitchens v. Brown, 7 Vet.App. 320,

325 (1995); Murincsak v. Derwinski, 2 Vet.App. 363, 369

(1992); Schafrath, 1 Vet.App. at 596 (1991).

The veteran's appeal is, therefore, granted.

ORDER

The reduction from 20 percent to 10 percent for the veteran's

service-connected residuals of a right knee injury was not

proper, and the 20 percent rating is restored.

My ole faithful Montgomery trying to slip one by a veteran. They just will not accept the fact that veterans are not idiots like they are. They probably did not really try to pull a quickie - they are dumb butts and probably did not know the law themselves!!!!

0813448.txt

Edited July 18, 2008 by Ricky (see edit history)