Veteranclaims’s Blog

November 25, 2021

Citations; Hedgepeth v. Wilkie ,30 Vet.App.(2018);

Filed under: Uncategorized — Tags: , — veteranclaims @ 7:20 pm

“Where a veteran’s disability rating is reduced,the Board must determine whether the reduction of the veteran’s disability rating was proper and must not phrase the issue in terms of whether the veteran was entitled to an increased rating, including whether the veteran was entitled to restoration of a previous rating.” Hedgepeth v. Wilkie, 30 Vet.App.318, 323 (2018).

Where a veteran’s disability rating is reduced,the Board must determine whether the reduction of the veteran’s disability rating was proper.” Hedgepeth v. Wilkie, 30 Vet.App.318, 323 (2018)(citing Dofflemyer v.Derwinski ,2 Vet.App.277, 279-80 (1992)).

Hedgepeth v. Wilkie, 30 Vet.App.317, 324 (2018)(holding that VA may not reduce an evaluation without finding “that the veteran’s service- connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work”); Murphy v.Shinseki ,26 Vet.App.510,517 (2014); Faust ,13 Vet.App.at 349.

… the Court has found reversal to be warranted in certain circumstances where the Agency rendered a decision that was arbitrary, capricious,an abuse of discretion,or otherwise not in accordance with law because VA did not afford the claimant special regulatory protections required for rating reductions and imposed an inappropriate standard of proof.For instance,in Brown, the Court “set . ..aside as ‘not in accordance with law'”a Board decision that failed to comply with §3.344(a) and “reverse[d] the applicable standard of proof by requiring the claimant to prove by a preponderance of evidence” that he was entitled to a rating that had been reduced. 5 Vet.App.at 421-22 (quoting 38 U.S.C. § 7261(a)(3)(A)(1991)(the Court shall “hold unlawful and set aside decisions … issued or adopted by the Secretary, the Board of Veterans’ Appeals, or the Chairman of the Board found to be . ..arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”)); see Hedgepeth v. Wilkie, 30 Vet.App.318, 326-29 (2018)(reversing and reinstating where the Board failed to comply with §§3.343 and 3.344 and reversed the burden of proof); Kitchens v. Brown, 7 Vet.App.320, 324-25 (1995)(reversing and reinstating where the Board reduced a rating without complying with § 3.344 and reversed the burden of proof); Dofflemyer , 2 Vet.App.at 279-82 (reversing and reinstating where the Board failed to comply with §§3.343 and 3.344 and reversed the burden of proof); Karnas v. Derwinski,1 Vet.App.308, 310-11,314 (1991)(reversing and reinstating where the Board clearly erred in determining, without evidentiary support and in contravention of §3.343,that there was material improvement in the condition), overruled on other grounds by Kuzma v. Principi, 341 F.3d 1327 (Fed.Cir. 2003).

In this regard, it’s notable that the veteran does not invoke any of the special notice provisions applicable to rating reductions, see 38 C.F.R.§3.105(e)(2020), violations of which the Court has held void a reduction ab initio, see Hedgepeth v. Wilkie, 30 Vet.App.318, 328-29 (2018).

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