Simon: CUE and Rating Reductions

Simon v. Wilkie, Opinion Number 17-1361, decided December 20, 2018 addresses CUE in a decade’s old rating reduction and specifically focuses on 38 C.F.R § 3.344. 

Section 3.344 concerns reductions and creates safeguards, but only applies “to ratings which have continued for long periods at the same level (5 years or more).”

In March 1968, the veteran received an initial rating for PTSD of 50%.  An October 1969 decision reduced the rating to 30% and that decision was not appealed.  In 1974 (but less than 5 years later), the RO reduced the rating again from 30% to 10%. 

In 2014, the Appellant alleged the reduction from 30% to 10% was CUE.  He argued that because he had a PTSD rating of 50% from 1968 to 1970 and a rating of 30% from 1970 to 1974, he had maintained a rating of at least 30% for longer than the 5-year period outlined in the regulation.   Therefore, the VA committed CUE when it did not apply the protections in Section 3.344.

The Board rejected this argument saying a veteran has to have the exact same disability rating for at least a 5 year period.  Interestingly, the Secretary argued “that combining different rating periods is permissible under the regulation, but asserts that the rating protection can be earned through such combination only when the disability rating has increased within the 5-year period, i.e., when the condition is worsening.”  Id. at *7.

However, the Court rejected both parties’ interpretations.  Id. at *8.  It held that “The plain language of the regulation makes clear that the 5-year requirement can't be met by combining 2 periods with different rating percentages no matter whether the ratings fluctuated upward or downward.  The Court holds that a rating becomes entitled to heightened procedural protections under § 3.344(c) only when it has existed at the exact same percentage for at least 5 years.”  Id.

The Court’s reasoning stuck closely to the plain meaning of the regulation and especially the term “same level” which it determined was clear and did not include the proffered interpretations.  The Court then stated that looking through the lens of CUE, the Board applied the regulation properly.   

This is a hard decision that highlights why a veteran needs to carefully weigh whether to challenge and appeal a reduction rather than just accepting it.  A veteran might especially challenge a rating when he is below the 5 year term.

Decision by Judge Allen and joined in by C.J. Davis and Judge Falvey.

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