Murphy: An Inappropriate Reduction

George D. Murphy v. Shinseki, Opinion Number 12-1700, was decided April 4, 2014 and concerns a ratings reduction.

The veteran sought an increase from a 10% rating for sinusitis.  The increase was denied by the RO and remanded by the Board.  On remand, the Appeals Management Center increased the rating to 30% effective the date of the decision.  The impact was to increase his overall combined rating to 100%, which he began to receive.

The appeal was subsequently returned to the Board because it was not a complete grant of the benefits the veteran was seeking.  Incomprehensibly, the Board then characterized the appeal as entitlement to an increase in a 10% rating for sinusitis.  The Board did not address the AMC rating decision or Supplemental Statement of the Case, which had granted the increase to 30%, and instead found the veteran was not entitled to a rating greater than 10% for the sinusitis.

The Court was obviously shocked by the Board’s conduct.  It noted that once the AMC granted the increase to 30%, the only issue before the Board was the veteran’s entitlement to a rating in excess of 30%.  “[I]t was outside the scope of the veteran’s direct appeal for the Board to revisit the issue of entitlement to a disability evaluation less than 30%....  To hold otherwise would leave the door open for a possible ‘chilling effect’ in the administrative appeal process, whereby veterans might be afraid to seek higher disability evaluations on appeal, for fear of having already awarded benefits reduced by the Board during the appellate process.”  Id. at *5.

The Court also explained that an award of disability compensation or an increase is different than a finding of fact or law.  An award or increase “carries with it substantive rights and procedural safeguards that cannot be easily discarded in the name of de novo Board adjudication.”  Id. at *6.  The Court then noted the substantive regulatory requirements related to a reduction and fact the Board’s decision did not follow these regulations.

This case stands for the simple proposition that a veteran should not be afraid to appeal a decision because he fears the award he has received might be reduced.

Decision written by Judge Bartley and joined by Judges Moorman and Lance.