Citation Nr: 18149060 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-07 479 DATE: November 8, 2018 ORDER The reduction to 30 percent being improper, restoration of a 50 percent rating for service-connected posttraumatic stress disorder (PTSD), effective October 1, 2014, is granted. FINDINGS OF FACT 1. The Veteran received notice of the proposed reduction of his 50 percent rating for service-connected PTSD by way of May 2014 rating decision and notification letter, and he was notified of his right to submit additional evidence and request a predetermination hearing. 2. The preponderance of the evidence does not support a finding that the Veteran’s PTSD has improved under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the Veteran’s disability evaluation from 50 to 30 percent for PTSD was improper and the 50 percent rating is restored, effective October 1, 2014. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 2000 to June 2005. He appeals a July 2014 rating decision by the Agency of Original Jurisdiction (AOJ) reducing his 50 percent rating for PTSD to 30 percent, effective October 1, 2014. In this case, a rating reduction is proper when the AOJ follows the procedural requirements outlined in 38 C.F.R. § 3.105 and the evidence shows improvement in the Veteran’s PTSD under the ordinary conditions of life and work. Under the provisions of 38 C.F.R. § 3.105, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of compensation payments, a rating proposing the reduction will be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, a Veteran must be given notice that he has: (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level; and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). Here, in an April 2012 rating decision, the AOJ increased the Veteran’s disability rating from 30 to 50 percent for PTSD, effective January 20, 2012. A May 2014 proposed rating and accompanying notification letter discussed material facts and reasons why VA proposed the reduction and notified the Veteran that he had 60 days to present additional evidence and 30 days to request a predetermination hearing. The Veteran did not request a predetermination hearing. Accordingly, the Board finds the requirements of 38 C.F.R. § 3.105 were met. Having decided that the procedural requirements as set forth in 38 C.F.R. § 3.105 were met, the next question is whether, given the available evidence, the Veteran’s condition improved such that a reduction was warranted. The law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, an adequate reexamination that discloses improvement in the condition will warrant reduction in rating. See 38 C.F.R. § 3.344(c). In the present case, the Veteran’s 50 percent rating for PTSD had been in effect for less than five years before the July 2014 rating decision reduced it to 30 percent. As a result, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply. Nevertheless, the Court of Appeals for Veterans Claims (Court) has stated that certain regulations “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the [Veteran’s] disability.” Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction requires an inquiry as to “whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown, 5 Vet. App. at 421. Importantly, and critical to this case, the Court in Brown concluded that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Id. at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran’s responsibility to show the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Medical and non-medical indicators of improvement may be considered. See Faust v. West, 13 Vet. App. 342, 349 (2000). Having reviewed the evidence of record, the Board finds that restoration of the 50 percent rating for the Veteran’s PTSD, effective October 1, 2014, is warranted. The Veteran’s PTSD has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provide that a 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted for 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; difficulty in establishing effective work and social relationships. Id. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). VA proposed to reduce his rating based on an August 2013 VA examination report where the clinician did not review the full claims file, but rather “CPRS/medical record and temporary file were reviewed.” See August 2013 VA examination report. Nevertheless, the clinician did not find a significant difference between the Veteran’s assessed condition that day and in a VA examination conducted 15 months prior. Id. At the March 2012 VA examination, the Veteran exhibited the following symptoms: (1) depressed mood; (2) anxiety; (3) suspiciousness; (4) panic attacks that occur weekly or less often; (5) chronic sleep impairment; (6) flattened affect; and (7) disturbances of motivation and mood. See March 2012 VA examination report. Importantly, at the March 2012 VA examination, the VA clinician recognized that the Veteran’s trauma symptoms “have now persisted unabated for several years.” See March 2012 VA examination report. Further, the VA clinician stated that the Veteran had friction with his wife because he refused to discuss his military experiences with her. This avoidance behavior “increased [the] Veteran’s sense of disconnection from others, as he often has panic symptoms when he is faced with or even anticipates being asked about his military experiences.” Id. The Veteran also noted decreased interest in pleasurable, leisure activities and had continued difficulty coping with persistent, vivid, and trauma-related nightmares. Importantly, the VA clinician stated that the Veteran’s disrupted sleep is “impacting his quality of life and occasionally his work performance due to his fatigue and periods of irritability.” Id. The main difference between the March 2012 and August 2013 VA examinations is the global assessment functioning (GAF) scale scores recorded on each day. However, in Golden v. Shulkin, the Court held that, given the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. 29 Vet. App. 221, 225 (2018). The DSM-5 applies in this case because the case was pending before the AOJ on or after August 4, 2014. Further, the Veteran explained that last time he had an interview with someone at VA regarding his PTSD, he was “able to control [his] outward emotions better when discussing things, but that doesn’t mean [he] is showing improvement, it just means [he is] able to hide it better.” See September 2014 Veteran statement. Importantly, the Veteran also explained he is “terrified in [his] own home, always thinking someone could attack at anytime and feel[s] more comfortable with weapons readily available. [He] still has dreams and night sweats . . . [and has a] hard time at work with loud noises.” See September 2014 Veteran statement. He continues to avoid crowds, and his memory has suffered. Id. Accordingly, the Board finds that the Veteran’s ability to function under the ordinary conditions of life and work has not improved. The Veterans symptoms remained consistent between his March 2012 and August 2013 VA examinations. Reduction based on GAF scores was also inappropriate, and the Veteran provided credible testimony regarding his continued struggles because of PTSD. As noted above, in reduction cases, the burden of proof lies with VA to show that the Veteran’s disability has undergone an observable improvement. To be precise, the burden is on VA to establish by a preponderance of evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 421 (1993). As there is conflicting evidence as to whether the Veteran’s disability has actually improved, and highly probative evidence indicates the Veteran’s condition has not improved, the Board finds that VA has not met its burden and that the reduction in the Veteran’s disability evaluation for his PTSD was therefore improper. The 50 percent rating for PTSD is therefore restored. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel