Citation Nr: 1309989	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  10-24 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Evaluation of posttraumatic stress disorder (PTSD), to include whether the reduction from 100 percent to 50 percent, effective January 1, 2010, was proper.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant and his mother


ATTORNEY FOR THE BOARD

S.J. Janec, Counsel


INTRODUCTION

The Veteran had active military service from October 2000 to December 2003.  

This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) that reduced the Veteran's 100 percent schedular rating for PTSD to 50 percent effective January 1, 2010.  

The Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO in March 2012.  A transcript of the proceeding is included in the claims file.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

As detailed above, the October 2009 rating decision reduced the rating for the Veteran's service-connected PTSD from 100 percent to 50 percent effective January 1, 2010 after proposing the reduction in a June 2009 rating decision.  The 100 percent rating had been in effect since March 1, 2007, a period of less than five years.  The tenets of 38 C.F.R. § 3.344(a) and (b) are thereby not applicable.  The Veteran filed a notice of disagreement in January 2010 indicating that he wished to appeal the reduction.  

Because the reduction involves termination of a total rating, guidance set forth at 38 C.F.R. § 3.343 must be followed.  According to § 3.343(a), "Total disability ratings, when warranted by the severity of the condition, and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition."  However, in the statement of the case issued to him in May 2010, the RO failed to include reference to the relevant regulations pertaining to rating reductions, 38 C.F.R. §§ 3.105(e) and 3.343 (2012).  Rather the issue was characterized as entitlement to an increased rating, and those regulations were included in the document.  

Corrective action was also not included in the subsequently issued April 2011 and July 2011 supplemental statements of the case.  Indeed, when scrutinizing the rating decision, the RO merely noted that the Veteran's PTSD was "less severe" when comparing the findings of a July 2009 VA examination to those of earlier examinations.  There was no discussion as to whether the evidentiary requirement of 3.343 had been met.  Therefore, the Board concludes that a remand is necessary to cure the procedural defect.  

Accordingly, the case is REMANDED for the following action:

The RO/AMC must readjudicate the Veteran's claim that the rating reduction for his PTSD from 100 percent to 50 percent was improper with full consideration of the regulations pertaining to rating reductions, including 38 C.F.R. §§ 3.105(e), 3.343 (2012).  If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case that includes reference to the regulations denoted above, and afford him the opportunity to respond thereto.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United 

States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2012).