26 Vet. App. 510
Vet. App.2014Background
- Murphy, a Vietnam-era veteran, challenged a Board decision denying an increase for sinusitis from 10% to more than 10%.
- AMC granted a 30% evaluation for sinusitis in June 2011, effective June 20, 2003, with payment beginning July 2011.
- The AMC communications suggested combined benefits; the case was returned to the Board, which continued to cite a 10% rating.
- The Board remand proceedings preceded an incorrect framing of the issue as entitlement to more than 10%, despite the AMC award.
- Murphy began receiving increased compensation at the 30% level before the Board purportedly reduced to 10%, creating a protective reliance interest.
- The Board reduced Murphy’s rating without following required procedures for reductions and without proper consideration of the entire record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Board’s mischaracterization of the issue error? | Murphy argues Board acted outside scope by denying >10% while 30% was in effect. | Secretary contends Board may review findings and that mischaracterization does not render result void. | Reversed; mischaracterization tainted the decision. |
| Did the Board violate 38 C.F.R. § 3.105(e) by reducing from 30% to 10% while payment was being made? | Murphy asserts due process interest and § 3.105(e) notice were required and not provided. | Secretary argues reductions and protections depend on context; § 3.105(e) applicability disputed. | Violation found; due process protections required and not satisfied. |
| Did the Board comply with substantive reduction requirements (Brown v. Brown, Faust v. West)? | Murphy contends Board failed to determine actual change and improvements in functioning. | Secretary maintains Board authority to review and apply applicable law. | Board failed to meet substantive reduction prerequisites; improper reduction. |
Key Cases Cited
- McBurney v. Shinseki, 23 Vet.App. 136 (2009) (Board not bound by RO’s favorable findings; distinction for benefits awards)
- Anderson v. Shinseki, 22 Vet.App. 423 (2009) (Board review of favorable findings; limitations on applicability)
- O'Connell v. Nicholson, 21 Vet.App. 89 (2007) (§ 3.105(e) applicability in staged-rating context)
- Reizenstein v. Peake, 22 Vet.App. 202 (2008) (reliance interests and protections in running awards)
- Singleton v. Shinseki, 23 Vet.App. 376 (2010) (reliance on running awards; distinction from non- running determinations)
- Payne v. Derwinski, 1 Vet.App. 85 (1990) (Board not free to ignore regulations; due process in notice)
- Brown v. Brown, 5 Vet.App. 413 (1993) (rating reduction requirements; actual change and improvement analysis)
- Faust v. West, 13 Vet.App. 342 (2000) (reduction case requirements; consideration of history and functioning)
- AB v. Brown, 6 Vet.App. 35 (1993) (scope of appeal; unresolved issues after partial grants)