Citation Nr: 1500749	
Decision Date: 01/08/15    Archive Date: 01/13/15

DOCKET NO.  10-15 380	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Propriety of the reduction of a total rating for posttraumatic stress disorder (PTSD) effective from June 1, 2009, as effectuated by a rating decision of March 2009.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel

INTRODUCTION

The Veteran served on active duty from August 1968 to February 1970, to include combat service in Vietnam.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in which a 100 percent schedular evaluation for PTSD was reduced to 70 percent, effective from June 2009.  

The Veteran in his substantive appeal of March 2010 specifically requested a videoconference hearing before the Board as to the issue on appeal.  That request was withdrawn in writing by the Veteran's signed statement of October 2011.  No other request for a hearing remains pending.  


FINDING OF FACT

Action of the RO in March 2009 for the reduction in the total schedular evaluation assigned for the Veteran's service-connected PTSD was effectuated without regard to the requirements set forth in 38 C.F.R. §§ 3.343 or 3.344 (2014). 


CONCLUSION OF LAW

The RO action of March 2009, reducing the total rating assigned for PTSD, is void ab initio and restoration of the 100 percent schedular evaluation therefor is warranted.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.105, 3.343, 3.344, 4.130, Diagnostic Code 9411 (2014). 

REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist the Veteran; however, as the disposition herein reached is wholly favorable to the Veteran, the need to discuss the VA's efforts to comply with the cited law and regulation is obviated. 

The record reflects that service connection for PTSD was established by RO action in April 2004, at which time a 70 percent rating was assigned, effective from February 23, 2004.  The Veteran appealed the initial rating assigned and by its rating action in October 2004, the RO assigned a 100 percent schedular evaluation for PTSD, effective from February 23, 2004.  That evaluation was not permanent and thus subject to future adjustment.  By rating action in September 2008, the RO proposed to reduce the total schedular evaluation for PTSD to 70 percent, and such reduction was effectuated by rating action in March 2009, effective from June 1, 2009.  

Integral to this decision are the provisions of 38 C.F.R. § 3.343(a) which provide that a total disability rating, as here, 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.  Examination reports showing material improvement must be evaluated in conjunction with all the facts of record and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, that is, while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).  Additional requirements for a reduction of a rating in effect for five or more years are set forth in 38 C.F.R. § 3.344, which are not exclusive to total rating terminations. 

Where VA fails to observe applicable law and regulation in reducing a veteran's rating, such a rating is void ab initio and must be set aside as not in accordance with the law.  Brown v. Brown, 5 Vet. App. 413, 422 (1993).

Notwithstanding the fact that the reduction effectuated in this matter was undertaken in compliance with 38 C.F.R. § 3.105(e), it is nevertheless evident that such action was effectuated without specific consideration or even reference to 38 C.F.R. §§ 3.343, 3.344, nor was the Veteran furnished notice of those regulations or their impact in any notice, statement of the case, supplemental statement of the case, or any other subsequent document provided to him by the RO.  Notice is taken that the 100 percent schedular evaluation remained in effect from February 2004 to June 2009, a period in excess of five years, as required for application of 38 C.F.R. § 3.344.  

In sum, the RO has not developed or adjudicated this matter as a case involving a total rating termination governed by 38 C.F.R. §§ 3.343, 3.344, the effect of which is to void ab initio the RO's reduction action of March 2009 and to compel the Board to set it aside as not in accordance with law.  Dofflemeyer v. Derwinski, 2 Vet. App. 277, 280-82 (1992) (citing Browder v. Derwinski, 1 Vet. App. 204, 205 (1991)); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). 

As there is no indication that the RO considered the referenced regulatory provisions in terminating the total rating, and as there was no finding that material improvement had been shown or, if it was established, that it had been attained under the ordinary conditions of life, the total schedular rating must be restored for the period at issue.  The RO's failure to demonstrate that material improvement had been attained under the ordinary conditions of life with respect to the Veteran's PTSD cannot be cured by subsequent examination or action by VA.  Rather, the Board must look only to the evidence of record at the time of the reduction, and determine whether that action was appropriate.  

This decision does not suggest that the current evidence of record supports the current 100 percent evaluation, but simply that the reduction of the 100 percent rating was not effectuated in accord with dispositive legal authority.  Any subsequent action taken to reduce the rating in question must be in accord with the facts then presented and the governing legal criteria then in effect. 


ORDER

Inasmuch as the reduction of total rating effectuated in March 2009 is void ab initio, restoration of the total schedular evaluation for PTSD is granted for the period from June 1, 2009, to the present.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs