Murphy v. Shinseki, 26 Vet.App. 510 (Apr. 4, 2014)
SCOPE OF BVA REVIEW FOLLOWING AMC RATING DECISION & SSOC
The Board mischaracterized the issue on appeal when it ignored an AMC rating decision that had awarded an increased rating. When the Board issued its decision, the AMC decision had already been implemented – and the veteran was receiving benefits at the higher rate. Thus the Board’s mischaracterization of the issue constituted a rating reduction that was accomplished without the appropriate process required by regulation.
The veteran sought an increase of his 10% rating for sinusitis. The Board remanded the claim to the AMC for additional development. The AMC issued a rating decision awarding 30%, and a Supplemental Statement of the Case, denying a rating in excess of 30%. The veteran received these decisions and began receiving benefits at the higher rate. Because the veteran did not withdraw his appeals, the case was returned to the Board. The Board characterized the issue as an appeal for an increase in a 10% rating – instead of an increase in excess of 30% – ignoring the AMC rating decision and the SSOC. The Court determined that the Board improperly considered an issue outside the scope of the appeal. The Court held that because the veteran had already been receiving disability payments at the higher rate, he had a reliance interest in that continued payment and that any rating reduction could only be accomplished by following the regulatory procedures outlined in 38 C.F.R. § 3.105(e).