Case A26040814

J.P. NORMAN · 2026 · Case ID: A26040814

GRANTED

Summary

The veteran, who served in the United States Air Force from March 20, 1985, to April 29, 1988, appeals the discontinuance of Total Disability based on Individual Unemployability (TDIU) and Dependents' Educational Assistance (DEA) benefits. The Board found that the March 10, 2025, rating decision discontinuing these benefits was void ab initio because it failed to comply with procedural requirements, specifically regarding the notification period and the proper application of regulations governing rating reductions and discontinuances. The Board noted that the agency of original jurisdiction (AOJ) did not properly apply regulations like 38 C.F.R. § 3.105(e) and § 3.344(c), which require specific procedures and evidence for reducing or discontinuing benefits. The veteran stated she retired from federal employment on January 28, 2023, and the Board accepted this statement, concluding that TDIU should be restored effective January 29, 2023, the day after her retirement. Consequently, DEA benefits are also restored with the same effective date. The Board emphasized that while the AOJ's actions were procedurally flawed, leading to a void ab initio reduction, the TDIU should have been effective January 29, 2023, not an earlier date previously awarded. The Board granted the restoration of TDIU and DEA benefits effective January 29, 2023, concluding that this constitutes a full grant of the benefits sought on appeal.

Rationale

Discontinuance void ab initio due to procedural errors; Failure to comply with 38 C.F.R. § 3.105(e) and § 3.344(c); Veteran's statement of retirement accepted

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

250324-524743

Full Decision Text

Citation Nr: A26040814
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250324-524743
DATE: April 30, 2026

ORDER

The discontinuance of entitlement to a total disability rating based on individual unemployability (TDIU) was improper as void ab initio; therefore, restoration of TDIU effective January 29, 2023 is granted.

The discontinuance of entitlement to Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C. chapter 35 was improper; therefore, restoration of basic eligibility to DEA benefits effective January 29, 2023 is granted.

FINDINGS OF FACT

1. By way of background, the Veteran was formerly in receipt of a rating of total disability rating based on individual unemployability due to service-connected disorders (TDIU) effective December 16, 2022, and concurrent basic eligibility to Dependents' Educational Assistance (DEA) pursuant to 38 U.S.C. chapter 35 as of the same date.

2. The March 10, 2025 rating decision discontinuing entitlements to TDIU and DEA (each terminated effective March 1, 2025, i.e.: retroactively by nine days) was implemented without fully complying with applicable regulations. As a result, that rating decision is void ab initio.

3. Alternatively, the March 10, 2025 rating decision discontinuing entitlements to TDIU and DEA (each terminated effective March 1, 2025) was not based on a material improvement in the Veteran's ability to function under the ordinary conditions of life and work.

4. The persuasive weight of competent and credible evidence clearly and convincingly establishes that the Veteran retired from employment at a United States federal agency on January 28, 2023; therefore, while TDIU must be restored, it must be characterized as effective January 29, 2023.

5. As the Veteran's permanent and total evaluation has been restored effective January 29, 2023, DEA benefits under 38 U.S.C. chapter 35 are restored accordingly.

CONCLUSIONS OF LAW

1. The discontinuance of entitlement to a total disability rating based on individual unemployability (TDIU) was improper as void ab initio; therefore, the criteria for restoration of TDIU effective January 29, 2023 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.343(c), 3.344(c).

2. The discontinuance of entitlement to Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C. chapter 35 was improper; therefore, the criteria for restoration of basic eligibility to DEA benefits effective January 29, 2023 have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807(a), 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from March 20, 1985 to April 29, 1988. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of a March 10, 2025 rating decision.

In the March 24, 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 March 10, 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran submitted additional evidence on the same date that she submitted her VA Form 10182. New evidence cannot be considered at this time; however, arguments and contentions can and have been considered at this time, and if additional
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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran submitted additional evidence on the same date that she submitted her VA Form 10182. New evidence cannot be considered at this time; however, arguments and contentions can and have been considered at this time, and if additional evidence is duplicative of evidence received as of March 10, 2025, then the Board will assure the Veteran that that evidence was also considered. New evidence submitted with a VA Form 10182 on which the Direct Review option is selected creates uncertainty as to which Board review option the claimant intended. This should normally trigger the Board's duty to seek clarification under 38 C.F.R> § 20.202(f). See Edwards v. McDonough, 36 Vet. App. 56 (2023).

The Board cannot locate any such "Edwards letter" that should have been mailed to her. Meanwhile, as of this adjudication, both more than one year after the rating decision on appeal, and more than 60 days after receipt of the Notice of Disagreement, have passed. As such, the Board will proceed with review of the appeal on the originally selected Direct Review docket, and without consideration at this time of any copy of any evidence submitted after March 10, 2025, let alone with the March 24, 2025 VA Form 10182.

That being said, the Board construes this adjudication as a full grant of maximum benefits sought on appeal, subject to limits on the Board's jurisdiction and governing laws and regulations concerning the payment of monetary benefits. Because the Board can grant the Veteran's claims in full, a remand would only cause undue delay in adjudicating the claim, with no reasonable likelihood that any further benefits not otherwise available now could be granted after the remand. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). By granting the claim in full now, albeit subject to governing laws and regulations concerning the payment of monetary benefits, the Board can ensure that the Veteran is no prejudiced by any failure to provide an "Edwards letter." See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).

1. The discontinuance of entitlement to a total disability rating based on individual unemployability (TDIU) was improper as void ab initio; therefore, restoration of TDIU effective January 29, 2023 is granted.

A veteran's rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran's disability, VA is required to comply with several general 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; see also 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 the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.

Where a reduction in an 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 must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that they have 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that they may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, final rating action will be taken, and the award will be reduced or discontinued effective the
an 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 must be prepared setting forth all material facts and reasons, and the RO must notify the veteran that they have 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that they may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e) (emphasis added by the Board).

VA's General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). It reasoned that this regulation is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. This appeal concerns discontinuances of TDIU and DEA benefits, which are inherently reductions of compensation payable. As such, requirements of 38 C.F.R § 3.105(e) apply.

In any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the 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). It is essential, both in the examination and evaluation of the disability, that each be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2.

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) & (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.

The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.

Under 38 C.F.R. § 3.344(a) & (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995).

The provisions of 38 C.F.R. § 3.344(a) & (b) further provide certain procedural protections to a Veteran with regards to reductions of rating. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Here, TDIU appears to have been improperly paid from December 16, 2022 until January 28, 2023, notwithstanding its propriety effective January 29, 2023. There is no dispute that the Veteran's TDIU will have been in effect for less than five years; therefore, the provisions of 38 C.F.R. § 3.344(c) apply to her claims, but not § 3.344(a & b).

In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement
TDIU appears to have been improperly paid from December 16, 2022 until January 28, 2023, notwithstanding its propriety effective January 29, 2023. There is no dispute that the Veteran's TDIU will have been in effect for less than five years; therefore, the provisions of 38 C.F.R. § 3.344(c) apply to her claims, but not § 3.344(a & b).

In considering whether a reduction was proper, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer, infra. However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens, supra.

A claim stemming from a rating reduction action is a claim for restoration of the prior rating, and not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). There are certain procedures that are required when a rating is reduced, and the lower rating would result in a reduction or discontinuance of compensation payments being made. See 38 C.F.R. § 3.105(e). Specifically, when reduction of a rating is considered warranted and the lower rating 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 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. Unless otherwise provided, if additional evidence is not received within that period, 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. 38 C.F.R. § 3.105(e) (emphasis added by the Board).

To properly reduce a rating, VA must meet both procedural and substantive benchmarks.

Procedurally, where the reduction in the rating 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 will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e).

When a RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999).

The Board observes that the AOJ only correctly applied some notification requirements of 38 C.F.R. § 3.105(e) with respect to timing, by providing notice of proposed reductions, see, e.g.: Individual Unemployment Annual Eligibility Letter (rec'd Nov. 2, 2024), receiving no request for a pre-determination hearing within 30 days, and receiving and considering all relevant evidence submitted in support of the current rating within 60 days. 38 C.F.R. § 3.105(e) further requires that the Veteran should have been provided notice of a final reduction effective the next first calendar day of the month following 60 days, and that implementation.

In other words, for the AOJ to have discharged their obligations under 38 C.F.R. § 3.105(e) without error in the March 10, 2025 rating decision, they would have had to provide notice that TDIU and DEA were to expire June 1, 2025, because June 1, 2025 is the next first day of a calendar month after a 60-day notice period. The AOJ did not do this. The AOJ issued a rating decision, on March 10, 2025, informing the Veteran that TDIU and DEA were discontinued effective March 1, 2025, retroactively to the previous first day of a calendar month. By failing to adhere to all provisions of 38 C.F.R. § 3.105(e), the AOJ's attempted discontinuances of TDIU and DEA are void ab initio, so those reductions must be reversed as a matter of law. As such, no further discussion would ordinarily be warranted, but assuming arguendo that the
5 is the next first day of a calendar month after a 60-day notice period. The AOJ did not do this. The AOJ issued a rating decision, on March 10, 2025, informing the Veteran that TDIU and DEA were discontinued effective March 1, 2025, retroactively to the previous first day of a calendar month. By failing to adhere to all provisions of 38 C.F.R. § 3.105(e), the AOJ's attempted discontinuances of TDIU and DEA are void ab initio, so those reductions must be reversed as a matter of law. As such, no further discussion would ordinarily be warranted, but assuming arguendo that the AOJ correctly discharged all duties of providing procedural due process with material facts and reasons at correct times, the Board will continue adjudication of this claim.

Procedural due process requirements of 38 C.F.R. § 3.105(e) are not limited to clerical steps at a prescribed schedule. In addition to timing, § 3.105(e) directs the AOJ to promulgate a rating proposal setting forth all material facts and reasons as relevant to the reduction or discontinuance. 38 C.F.R. § 3.105(e); 38 U.S.C. § 5112(b)(6). The Board has reviewed all of the above notices of proposed rating reductions and notices of the reductions' finality.

In considering whether a reduction was proper, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated sustained, actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. VA is required to establish, by a preponderance of the evidence, that a rating reduction is warranted. See Kitchens v. Brown, supra.

On November 2, 2024, the Veteran was issued a letter stating, in sum and substance, that she earned wages above the poverty threshold for calendar year 2023; therefore, she was required to submit information to determine whether her TDIU should still be warranted. Thereafter, she has consistently asserted that she retired from employment from a U.S. federal agency on Saturday, January 28, 2023, and that all necessary retirement forms are on file with the U.S. Office of Personnel Management. See generally Correspondences (rec'd Nov. 14-18, 2024). The Board will take the Veteran at her word, and conclude that she retired due to service-connected disabilities that render her schedularly eligible for a TDIU, see 38 C.F.R. § 4.16, and that she has not secured any other employment after her retirement from federal employment on Saturday, January 28, 2023.

The Board could charge the AOJ with pre-decisional error in violation of the duty to assist in their failure to verify the Veteran's retirement with OPM. Nonetheless, the Board concludes that the AOJ did not validly and adequately address whether any demonstrated improvement in the Veteran's ability to function would be maintained under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.13; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Instead, the AOJ simply dismissed the Veteran's statement about her retirement as insufficient, and retroactively terminated her TDIU and basic DEA eligibility. The AOJ did not effectuate a proper application of the provisions of 38 C.F.R. §§ 3.343 and 3.344, the primary regulations governing discontinuances and rating reductions. See 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).

The Board emphasizes that the separate failure to properly apply the provisions of 38 C.F.R. § 3.344 also renders a rating reduction void ab initio. Such omissions, see 38 C.F.R. §§ 3.105(e); 3.343(c), and 3.344(c) are errors and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992).
.F.R. § 3.159(c)(4)(i).

Ultimately, when the Veteran's TDIU and DEA benefits were discontinued effective March 1, 2025, those reductions were not proper and are void ab initio. Thus, outstanding compensation must be restored, but the Board cannot ignore the discrepancy between the Veteran's award of TDIU previously effective December 16, 2022 (commensurate with schedular eligibility for a TDIU, with one bilateral knee disability rated 60 percent disabling or more), with the Veteran's stating that her retirement date is Saturday, January 28, 2023, which should have been verified to the AOJ by OPM. Where a restoration of this TDIU would otherwise effectuate an erroneous award based solely on administrative error or error in judgment, the Board will specify that the restoration should be as if this benefit were uninterrupted effective January 29, 2023 (the day after her retirement), and not December 16, 2022. See generally 38 U.S.C. § 5112(b)(1); 38 C.F.R. § 3.500(b)(2).

In other words, the Board concludes that the Veteran was improperly awarded TDIU and DEA benefits for approximately six weeks, from December 16, 2022 until retirement on January 28, 2023, but then the AOJ improperly discontinued TDIU effective March 1, 2025, which is more than 13 months prior to this Board adjudication. Outstanding compensation must be RESTORED subject to governing laws and regulations concerning the payment of monetary benefits, but an offset may be required to prevent an overpayment, because TDIU should only be effective January 29, 2023, instead of effective December 16, 2022. Because the outcome is warranted in view of this procedural defect, the Board need not address, from an evidentiary standpoint, the actual merits of the reduction. This restoration of an improperly reduced rating, effective the first day after her last day of employment, is a full GRANT of this benefit sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).

2. The discontinuance of entitlement to Dependents' Educational Assistance (DEA) benefits pursuant to 38 U.S.C. chapter 35 was improper; therefore, restoration of basic eligibility to DEA benefits effective January 29, 2023 is granted.

Eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); see 38 C.F.R. §§ 3.807(a)(1)-(2), 21.3021(a)(1)(iii), (3)(i). There is no dispute that the Veteran's basic eligibility to DEA pursuant to 38 U.S.C. chapter 35 is an ancillary benefit awarded pursuant to the grant of TDIU.

Under the Appeals Modernization Act (AMA), the Board is bound by earlier in time findings of fact that are favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). While the Board has determined that the previous discontinuance of TDIU was improper, the evidence is clear and convincing that TDIU should be effective January 29, 2023, and never any earlier, notwithstanding that remuneration previously effective December 16, 2022. The Board will similarly conclude that because the Veteran has always satisfied criteria for basic eligibility for DEA benefits upon her retirement, the discontinuance of DEA was improper, but it may only be restored with an amended effective date of January 29, 2023. 38 U.S
favorable to the appellant. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c). While the Board has determined that the previous discontinuance of TDIU was improper, the evidence is clear and convincing that TDIU should be effective January 29, 2023, and never any earlier, notwithstanding that remuneration previously effective December 16, 2022. The Board will similarly conclude that because the Veteran has always satisfied criteria for basic eligibility for DEA benefits upon her retirement, the discontinuance of DEA was improper, but it may only be restored with an amended effective date of January 29, 2023. 38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807. This claim must be GRANTED accordingly.

Outstanding compensation must be RESTORED subject to governing laws and regulations concerning the payment of monetary benefits, but subject to the limitation of the Board's jurisdiction, this is a full grant of the benefit sought on appeal. Grantham, supra; Sabonis, supra.

J.P. Norman

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Engle, Michael B.

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.

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