Citation Nr: 18152215 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-46 148 DATE: November 21, 2018 ORDER Reduction of the evaluation from 70 percent to 50 percent for service-connected posttraumatic stress disorder (PTSD), effective January 1, 2015, was proper. Total disability rating due to individual unemployability due to service-connected disabilities (TDIU) on a schedular basis prior to January 1, 2015 and on an extraschedular basis thereafter is denied. FINDINGS OF FACT 1. An August 2014 rating action proposed a reduction of the disability rating assigned for PTSD from 70 percent to 50 percent. 2. An October 2014 rating decision effectuated the proposed reduction of the disability rating for PTSD from 70 percent disabling to 50 percent, effective January 1, 2015. 3. The 70 percent disability rating for PTSD had been in effect for less than five years. 4. With respect to the assigned disability rating reduction from 70 to 50 percent on January 1, 2015, an adequate reexamination indicated an improvement in the severity of the Veteran’s service-connected PTSD, specifically that the Veteran has not shown deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 5. For the period prior to January 1, 2015, service connection is in effect for PTSD evaluated as 70 percent disabling. 6. For the period prior to January 1, 2015, the evidence does not show that the service-connected PTSD precludes the Veteran from obtaining and maintaining substantial gainful employment. 7. From January 1, 2015 onward, the Veteran does not meet the scheduler criteria for TDIU. 8. From January 1, 2015 onward, the preponderance of the evidence is against a finding that the Veteran’s service-connected disability rendered him unable to secure or follow substantially gainful employment so as to warrant referral for consideration of a TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The reduction of the disability rating for the Veteran’s PTSD from 70 percent to 50 percent effective January 1, 2015 was proper and the criteria for the restoration of a 70 percent disability rating for PTSD during this period have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344 (2018). 2. The criteria for entitlement to a TDIU have not been met on a schedular basis prior to January 1, 2015, or on an extraschedular basis from then onward. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Reduction of the evaluation from 70 percent to 50 percent for service-connected PTSD. Initially, the Board notes that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. The veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran must also be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e). In this case, an August 2014 letter provided the Veteran with appropriate notice of a proposed reduction of his PTSD rating from 70 percent to 50 percent. In an October 2014 rating decision, the RO effectuated the proposed reduction, effective from January 1, 2015, noting that the Veteran had not submitted any evidence that the reduction should not be made. The Veteran had been afforded a VA examination in May 2014, upon which the proposed reduction was based. Based upon these facts, the Board finds that the RO’s reduction of the Veteran’s PTSD was procedurally in accordance with the notice provisions under 38 C.F.R. § 3.105. Service connection for PTSD has been in effect since October 2012, at which time a 70 percent disability rating was assigned. The 70 percent disability was undisturbed until the reduction at issue, which, as noted above, was effective from January 1, 2015. Given these facts, the 70 percent disability rating was in effect for less than five years before it was effectively reduced. See Brown v. Brown, 5 Vet. App. 413, 418 (1993) (noting that the duration of a rating must be measured from the effective date assigned that rating until the effective date of the actual reduction). Where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) 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); 3.343(a). 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 v. Brown, 5 Vet. App. 413, 421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The question of whether a disability has improved involves consideration of the applicable rating criteria. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence that bears on occupational and social impairment, rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Under General Rating Formula for Mental Disorders, 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 normal routine behavior, self-care, and conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and 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 inability to establish and maintain effective relationships. As stated above, an October 2014 rating decision reduced the rating for PTSD from 70 percent to 50 percent, effective January 1, 2015. The RO based its decision largely on a VA examination in May 2014. See October 2014 rating decision; see also May 2014 VA examination. The Board acknowledges that the May 2014 VA examination prompting the reduction proposal shows an improvement in the severity of the Veteran’s mental health disability. Specifically, the Veteran’s VA examination showed that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks during period of significant stress. The Veteran stated that he and his wife and he and his sons get along well together. He also stated he enjoyed tinkering with old cars but that he did not have any friends that he talked with. The examiner noted that the Veteran’s PTSD symptoms consisted of depressed mood, anxiety, suspiciousness, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene. At a May 2015 VA treatment session he reported that he stopped drinking, he had sleep problems, but no nightmares, a depressed mood and low energy with less enjoyment in activities. See Memphis VAMC records May 2015. Given the May 2014 VA examination and VA treatment records, the Board concludes that an adequate examination was performed in May 2014 that showed improvement consistent with a reduction from 70 percent to 50 percent under the provisions of 38 C.F.R. § 3.344(c), under the criteria for a mental health disability for the period on appeal. The Board finds particularly probative that the Veteran’s May 2014 VA examination showed that the Veteran had occupational and social impairment due to mild or transient symptoms and that he was able to maintain relationships with his wife and sons, and still participate in activities such as fixing cars. Moreover, the May 2014 examiner did not note any indication of suicidal ideations or the inability to establish relationships. The Board observes the Veteran’s April 2015 notice of disagreement wherein he stated that he stopped working due to his coworkers and boss, he and his wife have separate bedrooms, he had short term memory problems, was unable make friends, and cannot work. However, the Board finds more probative the Veteran’s statements made during the earlier May 2013 VA examination and May 2014 VA examination. During both, he asserted that he stopped working when his father got sick and then did not return to work because he had enough time to retire. Moreover he remained married to his wife of over 40 years. Thus, the more persuasive evidence is contained in the VA examination reports. Under the circumstances, the Board concludes that the RO’s rating action to effectively reduce the Veteran’s disability rating for PTSD from 70 percent to 50 percent, effective January 1, 2015, was proper. 38 U.S.C. § 1155; 38 C.F.R. § 3.343(a), 38 C.F.R. § 3.344(a) and (c). Accordingly, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. The Veteran has claimed that he is unable to work due to his service-connected PTSD. After a review of the record, the Board finds that entitlement to TDIU is not warranted. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). In this case, the Veteran has one service connected disability, one rated as 70 percent disabling prior to January 1, 2015 and as 50 percent disabling thereafter. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2018). With regard to the period prior to January 1, 2015, the Veteran is service connected for PTSD evaluated at 70 percent disabling. Therefore, his combined rating was 70 percent prior to January 1, 2015. Accordingly, the Veteran meets the schedular criteria for this period of the appeal. Thus, the main question before the Board for this period is whether the Veteran’s service-connected disability renders him unable to obtain substantially gainful employment. Although the record demonstrates that the schedular criteria is met prior to January 1, 2015, it does not show that the Veteran’s service-connected PTSD markedly interferes with his employment. In particular, a May 2013 VA examiner noted that the Veteran’s PTSD did not impair his ability to engage in physical and sedentary employment. Moreover, at his May 2014 VA examination for PTSD the Veteran indicated that he was most recently employed in 2007 as an iron worker. He stated that he left this position because his father got sick and that he had the time at work to retire. He reported feeling after his father passed away that he had no desire to go back to work. The examiner opined that the Veteran’s psychiatric condition did not impair his ability to engage in physical and sedentary forms of employment. See May 2014 VA examination. The Veteran has not indicated that he had any specific training or education prior to working. See October 2013 Veteran’s Application for increased compensation based on unemployability in VBMS. His application for program of education or training indicates that he participated in the iron workers training program from June 1970 to June 1973. With regard to the period on appeal from January 1, 2015 onward, the Veteran does not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). The Board finds that the preponderance of the evidence is against granting referral of the Veteran’s claim of entitlement to a TDIU for consideration on an extraschedular basis for this period. With regard to an extraschedular rating, if a Veteran fails to meet the threshold minimum percentage standards outlined in 38 C.F.R. § 4.16(a), such as the case here, rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age which would have justified a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Here, the Board has considered whether referral for extraschedular evaluation is warranted from January 1, 2015 onward, and finds that it is not. In this case, the Veteran has indicated that his service-connected PTSD rendered him unable to work. However, having reviewed the record, the Board finds that the Veteran is not unemployable by reason of his service-connected PTSD and therefore referral to the Director, Compensation and Pension Services, for extraschedular consideration is not warranted. In this regard, the Board again takes note of the May 2013 and May 2014 VA examinations discussed above, in which the Veteran indicated that he left his job position because his father got sick and that he had the time at work to retire. He reported after his father passed away that he had no desire to go back to work. The examiner opined that the Veteran’s psychiatric condition did not impair his ability to engage in physical and sedentary forms of employment. While the Board acknowledges that the Veteran indicated on his TDIU claim that he is unable to work due to his PTSD, it gives more probative weight to the May 2013 and May 2014 VA examiners findings that the Veteran’s disability does not preclude his ability to obtain and sustain physical or sedentary work. Therefore, TDIU on an extraschedular basis from January 1, 2015 onward, is not warranted and the Board is not required to submit the Veteran’s claim to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In consideration of the evidence, the Board finds that the preponderance of the evidence is against the claim for TDIU both on a schedular basis prior to January 1, 2015 and on an extraschedular basis thereafter; thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). Accordingly, TDIU is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Kamal, Associate Counsel