Bentley v. Derwinski — CUE required a 60% rating, and a later reduction without notice was void

The veteran sought revision of 1960 rating decisions that assigned a 40 percent evaluation for traumatic arteriovenous aneurysm with cardiac involvement. The Court reviewed the rating schedule then in effect and concluded that Diagnostic Code 7113 required a minimum 60 percent rating for an aneurysm with cardiac involvement. Because the February 24, 1960 rating assigned only 40 percent despite that schedular requirement, the Court held that the decision was clearly and unmistakably erroneous as a matter of law. The Court further held that, once the proper 60 percent rating should have been in place, VA could not lawfully reduce the evaluation to 40 percent in April 1960 without providing written notice of the reduction and an opportunity to respond, as required by the regulation then in effect. The Court reversed and remanded with instructions to award the 60 percent rating effective February 24, 1960 and vacate the April 1960 reduction. The Court also noted that a coronary artery disease issue mentioned by the Board had not been properly developed or placed before the Board and therefore was not decided on the merits.

When the rating schedule plainly requires a higher evaluation, assigning a lower, unauthorized rating is clear and unmistakable error; any later reduction of that proper rating must comply with the applicable notice-and-response procedures.

Bentley is a strong CUE case for rating errors where the schedule leaves no discretion. It also helps challenge retroactive reductions when VA skipped the procedural safeguards required before lowering a rating.

Practitioners can use Bentley to attack historic ratings that were plainly inconsistent with the governing diagnostic code. It is also useful where VA attempts to avoid reduction protections by recharacterizing a valid rating as an error after the fact.

Assigning a rating that is not authorized by the diagnostic code, then reducing compensation without proper notice and an opportunity to respond.

A veteran’s condition clearly meets the schedular minimum for a higher percentage, but the RO assigns a lower evaluation anyway. Years later, VA lowers the rating again without issuing the procedural notice required for reductions.

Cite Bentley when the record shows a rating decision that facially conflicts with the rating schedule and when VA later reduced benefits without following the governing reduction procedures. It is especially helpful in CUE motions involving historical rating actions.

38 C.F.R. § 3.105(a), 38 C.F.R. § 3.9(e) (1957), 38 C.F.R. § 4.104, Diagnostic Code 7113