Citation Nr: 18147076 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 15-10 158 DATE: November 5, 2018 ORDER Entitlement to restoration of a 100 percent evaluation for posttraumatic stress disorder (PTSD) with depression, effective December 1, 2011, is granted. Entitlement to restoration of a 100 percent evaluation for loss of use of both lower extremities, effective December 1, 2011, is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. In a May 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) proposed to reduce the evaluation assigned to the Veteran’s service-connected PTSD with depression, from a 100 percent evaluation down to 50 percent; the RO also proposed to reduce the evaluation assigned to the Veteran’s service-connected loss of use of both lower extremities, from a 100 percent evaluation down to separate evaluations of 20 percent for each lower extremity. 2. In a September 2011 rating decision, the RO reduced the evaluation assigned to the Veteran’s service-connected PTSD with depression to 50 percent, effective December 1, 2011 and reduced the evaluation assigned to the Veteran’s service-connected loss of use of both lower extremities to two separate 20 percent evaluations for radiculopathy of each lower extremity, effective December 1, 2011. 3. At the time of the reductions for PTSD with depression and loss of use of both lower extremities, the 100 percent evaluations had been in effect for a period of more than five years. 4. At the time of the September 2011 reductions, the evidence of record does not demonstrate a sustained improvement under the ordinary conditions of life. CONCLUSIONS OF LAW 1. The criteria for entitlement to restoration of a 100 percent rating for PTSD with depression, effective December 1, 2011, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. 2. The criteria for entitlement to restoration of a 100 percent rating for loss of use of both lower extremities, effective December 1, 2011, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to February 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from decisions of the VARO. The Veteran and his spouse testified at a February 2017 Travel Board hearing before the undersigned Veterans’ Law Judge (VLJ); a transcript of which is of record. Rating Reductions PTSD with Depression and Loss of use of Both Lower Extremities A rating reduction is the result of a course of action taken by VA, and not a claim by the Veteran. The regulation governing rating reductions, 38 C.F.R. § 3.105(e), contains its own notice provisions and procedures. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). Pursuant to 38 C.F.R. § 3.105(e), when a rating reduction is considered and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction must be prepared and mailed to the Veteran’s address of record. Id. This proposed rating should set forth all of the material facts and reasons for the proposed reduction. Id. Additionally, the Veteran must be given 60 days to present additional evidence showing that compensation payments should be continued at the present level. Id. In this case, the proposed reduction of the assigned evaluation for the Veteran’s service-connected PTSD with depression and loss of use of both lower extremities resulted in a reduction of compensation payments being made. Consequently, the RO issued a rating reduction proposal in May 2011, which set forth the material facts and reasons for the proposed reduction. However, the Board notes that the procedural requirements 38 C.F.R. § 3.105 are inapplicable because the Veteran’s combined rating was not reduced as a result of the reduction imposed. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities at 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. These ratings are intended to compensate, as far as can be practicably determined, the average impairment in earning capacity resulting from such diseases and injuries incurred or aggravated during military service and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. At the time, the Veteran’s PTSD with depression was rated under the criteria set forth at 38 C.F.R. § 4.71a, Diagnostic Code (DC) 9411. Pursuant to DC 9411, a 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.71a, DC 9411. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran’s loss of use of both lower extremities was rated under the criteria set forth at 38 C.F.R. § 4.71a, DC 5110. The Board observes that a single 100 percent rating is assignable under 38 C.F.R. § 4.71(a), DC 5110 when a Veteran exhibits the loss of use of both feet. A November 1995 rating decision granted service connection for PTSD, evaluated as 100 percent disabling, effective June 13, 1995. A June 15, 2006 rating decision granted service connection for loss of use of both lower extremities, evaluated as 100 percent disabling, effective October 13, 2004. These 100 percent ratings were reduced, by a September 2011 rating decision, effective December 1, 2011.These rating reductions were based on the findings from VA examinations and VA treatment records. Here, the Veteran’s 100 percent ratings were in effect for more than five years. As such, the Board’s analysis will be conducted under 38 C.F.R. § 3.344(a) and (b). In cases where an evaluation has been in effect for a period of five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A disability rating that has been in effect for a period of five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). Regulations “impose a clear requirement that VA rating reductions…be based upon a review of the entire history of the Veteran’s disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the Veteran’s ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, supra. In this case, the reductions are void because the provisions of 38 C.F.R. § 3.344 were not met. The RO in the May 2011 rating decision did not address whether any improvement in the Veteran’s PTSD with depression and loss of use of both lower extremities actually reflected an improvement in his ability to function under ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2; see also Faust v. West, 13 Vet. App. 342, 349 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). There also was no finding that the examinations used as a basis of reduction was as complete as those upon which payment was authorized or continued. Essentially, by focusing on what the evidence must show for higher ratings, rather than discussing the overall improvement of the Veteran’s service-connected disabilities, the May 2011 rating decision shows that the RO analyzed the issues of the reduction of the 100 percent evaluations just as it would a claim for an increased rating. Whenever, as in this case, the RO impermissibly places the burden of proof on the Veteran to show his disability has worsened, rather than the RO showing that the disability has improved, the RO has not complied with 38 C.F.R. § 3.344. The Board emphasizes that failure to properly apply the provisions of 38 C.F.R. § 3.344 makes a rating decision void ab initio. Such an omission is error and not in accordance with the law. Greyzck v. West, 12 Vet. App. 288 (1999); Hayes v. Brown, 9 Vet. App. 67 (1996); Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Accordingly, the rating reduction for the Veteran’s service-connected PTSD with depression, from a 100 percent evaluation down to 50 percent, effective December 1, 2011, was not proper. The rating reduction for service-connected loss of both lower extremities, from a 100 percent evaluation down to two separate 20 percent evaluations, effective December 1, 2011, was also not proper. The 100 percent evaluations are restored. REASONS FOR REMAND SMC based on Aid and Attendance Remand is necessary to develop evidence for SMC based on the need for aid and attendance and to obtain current VA treatment records. VA’s governing laws and regulations direct that special monthly compensation at the aid and attendance rate is payable by reason of the Veteran being helpless or so nearly helpless that he requires the regular aid and attendance of another person. 38 U.S.C. §§ 1502(b); 38 C.F.R. § 3.351(a), (b). To establish a need for regular aid and attendance, the Veteran must (1) be blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) be a patient in a nursing home because of mental or physical incapacity; or (3) show a factual need for aid and attendance. 38 U.S.C. § 1502(b); 38 C.F.R. §§ 3.351(c). The Veteran underwent VA examinations for his aid and attendance claim in March 2013, more than five years ago. Additionally, the Veteran was afforded VA examinations for his PTSD with depression and lower extremities in May 2013. Although generally, the mere passage of time is not a sufficient basis for a new examination, the Veteran and his spouse indicated in his hearing before the Board that his condition has worsened since those examinations were conducted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). This more recent testimony suggests a worsening of the Veteran’s disabilities since last examined by VA, warranting an updated aid and attendance examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186(1995). In order to determine whether the Veteran is entitled to SMC based on the need for regular aid and attendance, the Veteran must be provided an additional VA medical examination to evaluate the current effects the disabilities have on the Veteran’s ability to perform daily living activities. The matter is REMANDED for the following action: 1. Obtain and associate all outstanding VA treatment records with the claims file. 2. Then, schedule the Veteran for a VA aid and attendance examination to address whether the following are present as a result of service-connected disabilities or disabilities: (a) Inability to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this does not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacking at the back, etc.); inability to attend to the wants of nature; inability to feed himself through loss of coordination of the upper extremities or through extreme weakness; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. The examiner should also address whether the Veteran has loss of use of the bilateral upper extremities and bilateral lower extremities such that no effective function remains other than that which would be equally well served by an amputation stump with use of a suitable prosthetic appliance. The claims file must be reviewed in conjunction with the examination. The supporting rationale for all conclusions and opinions expressed must be provided. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel