Citation Nr: 18160659
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-19 237
DATE:	December 27, 2018
ORDER
Restoration of the 30 percent disability rating for headaches, effective February 2, 2012 is granted, subject to the regulations governing the payment of monetary awards.
Restoration of the 20 percent disability rating for radiculopathy of the left upper extremity, effective February 2, 2012 is granted, subject to the regulations governing the payment of monetary awards.
FINDINGS OF FACT
1. In a May 2013 rating decision, the regional office (RO) reduced the Veteran’s rating for headaches from 30 percent to noncompensable, and the Veteran’s rating for radiculopathy of the left upper extremity from 20 percent to noncompensable effective February 2, 2010.
2. The evidence of record fails to establish that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) for effectuating rating reductions for the Veteran’s headaches and radiculopathy of the left upper extremity as his overall compensation payments were reduced. 
CONCLUSIONS OF LAW
1. The reduction in the rating for headaches from 30 percent to noncompensable, effective February 2, 2012 was improper, and restoration of the 30 percent rating is warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8100.
2. The reduction in the rating for radiculopathy of the left upper extremity from 20 percent to noncompensable, effective February 2, 2012 was improper, and restoration of the 20 percent rating is warranted.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.7, 4.40, 4.45, 4.124a, Diagnostic Code 8514.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty with the United States Marine Corps from February 1989 to August 1990 and with the United States Army from June 2004 to November 2005 and October 2010 to February 2012.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office RO.  
Rating Reductions
1. Restoration of the 30 percent disability rating for headaches effective February 2, 2012 is granted.
2. Restoration of the 20 percent disability rating for radiculopathy of the left upper extremity effective February 2, 2012 is granted.
The Veteran and his representative contend the reduction in the ratings for the Veteran’s service-connected headaches and radiculopathy of the left upper extremity was improper.  See VA Form 21-0958, Notice of Disagreement, dated June 20, 2013; VA Form 9, Substantive Appeal, dated May 1, 2016. 
Service connection for radiculopathy of the left upper extremity was established in a November 2008 rating decision, which assigned a noncompensable rating under Diagnostic Code 8514, effective January 16, 2008.  A March 2010 rating decision awarded an earlier effective date and increased the rating for the Veteran’s radiculopathy of the left upper extremity to 20 percent, effective December 18, 2007.  
Service connection for headaches was established in a March 2010 rating decision, which assigned a 30 percent rating under Diagnostic Code 8100, effective December 18, 2007.  
The Veteran had a period of active service from October 7, 2010 to February 1, 2012.  Therefore, the Veteran’s compensation was suspended while he received active service pay.  VA regulations prohibit the receipt of VA disability compensation benefits for any period for which the person receives active service pay.  See 38 U.S.C. § 5304(c); 38 C.F.R. §§ 3.654, 3.700.  As such, the Veteran’s VA disability compensation benefits were discontinued October 6, 2010, the day before his term of active duty service began.  See 38 C.F.R. § 3.654(b)(1).  In February 2012, upon the completion of his active service, the Veteran contacted VA to have his disability compensation restored.  As the Veteran contacted VA within one year of the date of his release from active duty, the Veteran was eligible for his payments to be resumed effective February 2, 2012, the day following his release from active duty.  See 38 C.F.R. § 3.654(b)(1).       
A May 2013 rating decision reduced the ratings for the Veteran’s service-connected headaches and left upper extremity radiculopathy to noncompensable, effective February 2, 2012, the day after his separation from active duty, for both service-connected disabilities.  
When payments are resumed based on release from active service, compensation will be authorized based on the degree of disability found to exist at the time the award is resumed.  See 38 C.F.R. § 3.654(b)(2).  However, VA must comply with the procedural requirements of 38 C.F.R. § 3.105(e) when the compensation awarded results in a reduction in compensation payments.  
In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance.  38 C.F.R. § 3.105(e).  As enumerated in 38 C.F.R. § 3.105(e), 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.  In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level.  The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing, provided that the request is received within 30 days from the date of the notice.  38 C.F.R. § 3.105(i).  Thereafter, a final rating action will be taken and the award 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 action expires.  See 38 C.F.R. §§ 3.105(e); 3.500(r).
In this case, the Board finds that the procedural requirements of 38 C.F.R.              § 3.105(e) were not properly carried out by the RO.  Following the Veteran’s February 2012 telephone call inquiring about the restoration of his compensation benefits, the Board issued the May 2013 rating decision reducing the Veteran’s ratings from 30 percent to noncompensable for his service-connected headaches and from 20 percent to noncompensable for the Veteran’s service-connected radiculopathy of the left upper extremity, both effective February 2, 2012.  These reductions reduced the Veteran’s total compensation from 70 percent to 40 percent, effective February 2, 2012.  The RO did not issue a rating decision proposing the reduction or discontinuance setting forth all the material facts and reasons for the proposed reduction.  The Veteran was not notified of the contemplated action and furnished detailed reasons therefore, and he was not given 60 days for the presentation of additional evidence to show that compensation payments should be resumed at their prior level.  In addition, the Veteran did not receive notification that he would have an opportunity for a pre-determination hearing.  38 C.F.R. § 3.105(i).  As such, the reductions are void ab initio.
In summary, the action to reduce the disability rating from 30 percent to noncompensable for the Veteran’s service-connected headaches and the disability rating from 20 percent to noncompensable for the Veteran’s service-connected radiculopathy of the left upper extremity, was not proper, as it did not follow the procedures required when overall compensation payments are reduced.  Accordingly, restoration of the 30 percent rating for the Veteran’s headaches and the 20 percent rating for the Veteran’s radiculopathy of the left upper extremity is granted.  
 
M. SORISIO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Breitbach, Associate Counsel 

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