Motion for Reconsideration
Post date: Jan 16, 2012 1:56:58 AM
February 2, 2004
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, D.C. 20420
re: Veteran: [veteran name]
C-file: [vet ssn]
MOTION FOR RECONSIDERATION
or, in the alternative,
CLAIM OF CLEAR AND UNMISTAKABLE ERROR
(Explain the purpose of the motion along with the attachments)
Enclosed is a copy of the VA Form 22a, signed by the above veteran appointing me as his representative in connection with VA matters. Enclosed you will find a disk for your convenience. On it you will find the veteran’s 1135 page C-file, a rough index of the C-file, and a copy of this Motion, with exhibits. These documents may be viewed using an Adobe Acrobat reader. It should save the time you might otherwise spend sending to the St. Petersburg VA Regional Office for the C-file.
This letter relates to a reduction in the veteran’s VA benefits which occurred on March 1, 1982, following a letter addressed to him dated Jan 05, 1981 (Exhibit 1). Prior to that time the veteran had been rated at 90% disabled, with individual unemployability, resulting in a 100% disabled total rating. As the result of this action in 1981, the veteran’s compensation was reduced from $1220 (approximately) to $740 per month.
Mr. [last name] has remained at the 90% rating from that day forward, with the exception of a few times when he received a total rating due to hospitalizations. The reduction of benefits was finally upheld in a decision of the BVA dated January 17, 1984. That is the decision for which the veteran seeks reconsideration. In the alternative, that is the decision that the veteran contends contains clear and unmistakable error.
FACTS (Be clear, concise and to the point)
The veteran is a combat Marine veteran of the Tet offensive in Vietnam in 1968. After 14 months hospitalization on the hospital ship Repose, in Guam, and at the Oakland Naval Hospital, the veteran was finally medically discharged with a diagnosis...
On page 8 of this BVA decision, for the first time, one finds a tangential reference to the VA regulations on the requirements for termination of benefits. “In reducing a rating of 100 percent service-connected disability based on individual unemployability, caution must be exercised in such a determination that actual employability is established by clear and convincing evidence. (38 C.F.R. 3.314 (c)). It then made findings that:
3. The appellant has been reported as capable of tutoring and manual labor jobs that can be accomplished from a wheelchair; in other words, he has been shown to be clearly and convincingly able to work.
4. It has not been demonstrated that service-connected disabilities are productive of sufficient impairment so as to render the veteran unable to perform a substantially gainful occupation.
Based on these findings, the BVA decision was:
3. Restoration of the total evaluation based on individual unemployability due to service-connected disabilities is not warranted. (38 U.S.C. 355; 38 C.F.R. 3.321, 3.340, 3.341, 3.343(c), Part 4, 4.16). In arriving at its decision, the BVA failed, neglected or refused to discuss regulatory required findings necessary before a withdrawal of benefits were to finalized.
Specifically, the BVA failed to make a finding based on an examination showing material improvement in physical or mental condition. The version of VA regulation 38 C.F.R. § 3.343(a) in effect at the time provided that total disability ratings were not to be reduced or discontinued, in the absence of clear error, unless there was an examination showing material improvement in physical or mental condition.
The decision based on that examination should have been whether, upon consideration of all the facts and records, the veteran had attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or by following a regimen which precludes work. If the latter, reduction from total disability ratings should not have been considered pending a reexamination after a period of employment (3 to 6 months). (Exhibit 19).
None of this was considered or discussed in the 1984 BVA decision. Instead, the veteran’s case was treated much as a new claim for IU. Although the BVA decision acknowledged that the VA carried the burden of proof of showing clear and convincing evidence in its decision, it totally fails to discuss what it was that had to be shown.
There is no examination showing improvement in the Veteran’s case, nor any mention of improvement. As noted above, what they had the duty to show was that there had been improvement in the veteran’s condition since he had been previously determined unemployable. A review of the BVA’s finding of facts reveals no mention of improvement. It deals entirely with his current condition. The discussion, and the facts of the case, are bereft of any “examination showing material improvement in physical or mental condition.”
ARGUMENTS (Be clear, concise and to the point. Make sure you can back up your arguments.)
It is the veteran’s position that the elimination of the rating for individual unemployability was contrary to the law and that the IU rating should be restored, effective March 1, 1981. There are several reasons for this position.
THE REGULATION WHICH THE VA DEPENDED UPON WAS CONTRARY TO ESTABLISHED LAW.
Prior to the 1984 BVA decision in his case, the VA had relied on the provisions of the VA Adjudication Manual, M21-24,07 (sic) to relieve him of his IU rating.
Presumably, this is a reference to the Veterans Benefits Administration Adjudication Procedure Manual M21-1 (M21-1) section which addressed the '0.0000 TD (TI)Tj 10.8000.52000m.