PREC 1-2007    Applicability of 38 C.F.R. § 3.105(e) to TDIU Award Reinstated Based on CUE       Citation: Vet. Aff. Op. Gen Couns. Prec. 1-2007,  VAOPGCPREC 1-2007, 2007

QUESTION PRESENTED:

Do the procedures required by 38 C.F.R. § 3.105(e) apply where a total disability rating based on individual unemployability is reinstated for a limited period on the grounds of clear and unmistakable error in the original termination of the rating?

HELD:

Section 3.105(e) of title 38, Code of Federal Regulations, requires the Department of Veterans Affairs (VA) to follow specified procedures, including providing advance notice and an opportunity to present evidence and be heard, when terminating a total disability rating based on individual unemployability if the termination would result in reduction of compensation payments currently being made.  However, if VA retroactively reinstates such a total disability rating on the grounds of clear and unmistakable error in the original termination of the rating, section 3.105(e) does not apply to the determination of the duration of the reinstated rating because there would be no reduction in compensation payments currently being made.