PREC 6-92 Can VA Regional Officer Rating Decision reducing a Total Disability Rating be upheld in the absence of a Specific Reference in the Decision to 38 C.F.R. 3.343(a) Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-92, VAOPGCPREC 6-92, 1992 QUESTIONS PRESENTED:
1. Under what circumstances, if any, may a Department of Veterans Affairs Regional Office (VARO) rating decision reducing a total disability rating be upheld in the absence of a specific reference in the decision itself to 38 C.F.R. § 3.343(a)?
2. If section 3.343(a) need not be cited in the decision itself you requested our opinion with regard to the following: (a) How closely must the language in the decision track the language in section 3.343(a) to reflect that the reduction is in accordance with the provisions of the regulation?
(b) (b) May BVA look beyond the four corners of the rating decision itself to determine whether consideration was given to the provisions of section 3.343(a), such as to prior rating decisions which may have continued a 100% rating while noting that improvement was shown and providing for a future examination to establish the presence of sustained improvement?
(c) If BVA cannot determine from the rating decision itself or otherwise whether section 3.343(a) was considered, can this deficiency in the rating decision be cured by the letter notifying the veteran of the reduction, by a subsequently issued statement of the case, or by a BVA decision? (d) If the VA Regional Office rating decision disregarded section 3.343(a) and is void ab initio, can such a defect be cured by any subsequent act? Does it necessarily follow that all subsequent rating decisions and BVA decisions which sustain a rating less than 100% are likewise void? (e) If failure to cite section 3.343(a) in the rating decision renders the decision void ab initio, must all potentially applicable law and regulations be cited in VA Regional Office decisions and BVA decisions to avoid procedural due process violations? If all potentially applicable laws and regulations
do not need to be cited, what criteria are to be used in deciding whether the omission of a potentially applicable law or regulation constitutes a violation of substantive due process which cannot be cured?
3. Does an opinion set forth by General Counsel in a memorandum or brief to COVA, such as the concession in the Swan case, have any binding effect on Agency officials in any case other than the case then subject to COVA jurisdiction?
4. If an opinion set forth by General Counsel in a memorandum or brief to COVA is acted upon by COVA without comment or deliberation, does the legal opinion thereby become binding as though COVA had rendered the opinion?
HELD:
1. A rating board decision may be upheld in the absence of specific reference in the decision to section 3.343(a) if all of the evidence of record, including the decision, allows a conclusion to be drawn that section 3.343(a) has been considered and applied to the case. If it cannot be determined that it was
considered at the regional office level, then BVA must determine whether the claimant was prejudiced by this error. The Board may, under some circumstances, decide that issuing a decision addressing the issue without further action is appropriate. In other circumstances, the Board may conclude, based on all the evidence of record, that the failure to consider section 3.343(a)
resulted in prejudicial error and reverse the rating decision reducing the veteran's rating.
2. (a) In the absence of a specific reference to section 3.343(a) in the rating decision, language closely tracking that of the regulation may be of assistance to the reviewing authority in determining whether it was considered. However, language closely tracking that of section 3.343(a) is not mandatory. If it is apparent from the findings, language of the rating and the evidence of record that section 3.343(a) has been correctly applied, the rating decision should be upheld.
(b) On appeal, BVA makes a de novo review which allows it to look beyond the four corners of the regional office rating decision to make its decision with regard to whether section 3.343(a) was applied. A previous rating showing improvement may be considered in determining the current condition of the
veteran.
(c) If BVA cannot determine from the rating decision itself whether section 3.343(a) has been considered, BVA may use a letter notifying the veteran of the reduction or subsequent statement of the case as evidence that it was considered. If it is determined that the rating decision failed to include
consideration of section 3.343(a) but the statement of the case demonstrates that such failure was nonprejudicial, the error is cured. Likewise, a subsequent BVA decision may cure a failure to consider section 3.343(a) in the rating decision or failure to include it in the statement of the case if it is determined that these errors did not cause substantial prejudice to the veteran's case.
(d) If it can be shown that a regional office rating board disregarded section 3.343(a), its decision reducing the veteran's rating would be voidable.
(e) Failure to cite section 3.343(a) in a rating board decision does not render the decision void ab initio. Rating decisions are not required to cite all applicable laws and regulations.BVA decisions are required to include all issues and laws
material to the case. Where a veteran raises a well-grounded issue, all laws or regulations necessary to properly dispose of the claim must be cited by the BVA, and failure to do so would result in a voidable Board decision.
3. An opinion by General Counsel in a memorandum or brief to COVA sets forth the Department's position in the case in which it is filed. It has binding effect on Department officials only to the extent that the court specifically adopts the argument in its decision. In the Swan case, the court did adopt the legal interpretations made by the parties. These interpretations, however, did not include any consideration that the failure to take section 3.343(a) into account may constitute nonprejudicial error. Accordingly, there is room for clarification in this area and the Department is not bound to use the same argument regarding section 3.343(a) in appropriate cases in the future.
4. If an opinion or position set forth by General Counsel in argument before COVA is not expressly embraced by the court in its holding, the court's decision is not controlling precedent with respect to that position.
1 A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 6-92
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