Citation Nr: 18149378 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-06 993 DATE: November 9, 2018 ORDER Restoration of the 50 percent rating for posttraumatic stress disorder (PTSD), effective March 1, 2013, is granted. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. FINDING OF FACT The evidence of record at the time of the December 2012 rating decision reducing the Veteran’s rating for PTSD from 50 percent to 30 percent, effective March 1, 2013, did not reflect improvement in the Veteran’s ability to function in the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in rating from 50 percent to 30 percent for PTSD, effective March 1, 2013, was improper. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from January 1964 to January 1966, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the VA Regional Office (RO) in Atlanta, Georgia. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2018 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. Whether the reduction in rating from 50 percent to 30 percent for PTSD, effective March 1, 2013, was proper. The Veteran has contended that the disability rating assigned for his PTSD should not have been reduced from 50 percent to 30 percent. In resolving this issue, the Board must first address whether VA followed the procedural protections for reductions in evaluations when it reduced the Veteran’s PTSD rating from 50 percent to 30 percent. In an April 2009 rating decision, the RO granted an increased rating of 50 percent for the Veteran’s PTSD, effective October 16, 2008. In an August 2012 rating decision, the RO proposed to reduce the Veteran’s PTSD rating from 50 percent to 30 percent. In a December 2012 rating decision, the RO reduced the rating for the Veteran’s PTSD from 50 percent to 30 percent, effective March 1, 2013. Based on the foregoing, the Board finds that the procedural protections of 38 C.F.R. § 3.105(e) have been satisfied. As such, the Board turns to the question of whether the rating reduction for the Veteran’s PTSD was proper. At the time of the December 2012 rating decision, the Veteran’s assigned PTSD rating of 50 percent had not been in effect for more than five years. Where a rating has been in effect for less than five years, “[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.” 38 C.F.R. § 3.344(c). A February 2009 VA psychiatric examination report, upon which the 50 percent rating was originally based, reflected that the Veteran had endorsed constant symptoms of social isolation, emotional detachment, distressing dreams, nightmares, avoidant behaviors, poor memory, night sweats, heart palpitations, anger, irritability, hypervigilance, exaggerated startled response, paranoia, suspiciousness, panic attacks, and difficulty concentrating, which affected his total daily functioning. He related that he had no relationship with his family. He had been divorced two times and did not have a significant other. He described his relationship with his children as “strained.” He stated that he was unable to work, but shared that he was laid off nine months prior due to downsizing. The examiner determined that the Veteran occasionally had some interference in performing activities of daily living because the Veteran did not leave his home. The examiner stated that the Veteran was unable to establish and maintain effective work, school, social, and familial relationships because he went ten years without corresponding with his family and he tended to withdraw. The examiner added that the Veteran was unable to perform recreation or leisurely pursuits because he had no interest. In reducing the Veteran’s PTSD rating to 30 percent in December 2012, the RO relied primarily on the March 2012 VA psychiatric examination report. At his March 2012 VA psychiatric examination, the Veteran reported a clinical history similar to that reported at his February 2009 VA psychiatric examination, to include “not close” or “non-existent” familial and social relationships and unemployment since 2008. The Veteran endorsed symptoms of anxiety, chronic sleep impairment, irritability or outburst of anger, recurrent and distressing recollections of events, avoidant behaviors, inability to recall, restricted range of affect, and a sense of a foreshortened future. The examiner determined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. That was the last examination on record prior to the reduction. Hohol v. Derwinski, 2 Vet. App. 169 (1992). The Veteran has specifically disagreed with the March 2012 VA psychiatric examination report on which the reduction was based, asserting that his PTSD rating should be based upon his entire medical history and not on the findings of one VA examination. In particular, the Veteran has contended that his PTSD was “prone” to temporary and episodic improvement. Additionally, he continued to report symptoms of depressed mood, anxiety, irritability, suspiciousness, paranoia, memory loss, panic attacks, sleep impairment, nonexistent interpersonal and familial relationships, and isolative behaviors. The Board notes that the Veteran is competent to report his PTSD symptoms and his perception of their severity. Layno v. Brown, 6 Vet. App. 465, 470 (1994). He testified that his last VA examination was short and that the examiner wrote the report without the benefit of any case file information or knowledge of his case. Based on the foregoing, the Board finds that the March 2012 VA examination report did not reflect “an improvement in the Veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 420-421 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Faust v. West, 13 Vet. App. 342 (2000). Notably, the March 2012 VA psychiatric examination report did not reflect any changes since the Veteran’s February 2009 VA examination. Further, the examiner did not suggest any improvement in the symptoms associated with the Veteran’s PTSD. Thus, as compared to the prior February 2009 VA psychiatric examination findings, the Veteran’s overall disability picture had not improved appreciably. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Accordingly, when resolving reasonable doubt in favor of the Veteran, the Board concludes that the reduction in rating from 50 percent to 30 percent for the Veteran’s PTSD, effective March 1, 2013, was improper, and the 50 percent rating is therefore restored. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. The Veteran was last afforded a VA examination in March 2012. In August 2018, the Veteran testified that the severity of his service-connected PTSD had increased since that time. Therefore, the Board finds that the Veteran should be provided a new VA examination to determine the current level of severity of all impairment resulting from his PTSD. In addition, current treatment records should be identified and obtained before a decision is made with regard to the appeal. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the current level of severity of all impairment resulting from his service-connected PTSD. The claims file must be made available to, and reviewed by the examiner. Any indicated studies must be performed. The examiner should provide all information required for rating purposes. 3. Confirm that the VA examination report comports with this remand, and undertake any other development determined to be warranted. 4. Then, readjudicate the claim. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel