Citation Nr: 18152975 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-05 822 DATE: November 26, 2018 ORDER The reduction in the posttraumatic stress disorder (PTSD) evaluation from 50 percent disabling to 30 percent disabling, effective March 1, 2014, was proper, and the claim that it was improper is denied. FINDINGS OF FACT 1. A September 2013 rating decision and a separate September 2013 notification letter proposed a reduction of the evaluation assigned for PTSD from 50 percent to 30 percent, to be effective March 1, 2014. 2. A December 2013 rating decision effectuated the proposed disability rating for PTSD from 50 percent to 30 percent, effective March 1, 2014. 3. The evidence demonstrates a sustained improvement in the severity of the Veteran’s PTSD from March 1, 2014, the date of the assignment of the 30 percent rating for that disability. CONCLUSION OF LAW The reduction of the rating for the Veteran’s PTSD from 50 percent to 30 percent, effective March 1, 2014, was proper. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1968 to March 1970, and again from June 1975 to May 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 decision by the RO which reduced the rating for PTSD from 50 percent to 30 percent, effective March 1, 2014. In April 2017, the Veteran’s attorney at the time withdrew as his representative, and the Veteran has not retained new representation since. As the Veteran is now unrepresented in this case, VA has a duty to construe his claims liberally. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). By way of background, the Veteran was granted entitlement to service connection for PTSD in a February 2008 rating decision, with a 10 percent evaluation effective from April 30, 2007. In a July 2010 rating decision, the Veteran’s PTSD was increased to a 30 percent evaluation, effective from February 26, 2010. In a September 2011 rating decision, the Veteran’s PTSD was increased to a 50 percent evaluation, effective from November 16, 2010. In a September 2013 rating decision, the RO proposed to reduce the Veteran’s PTSD from the 50 percent evaluation to 30 percent, and in December 2013, the RO issued another rating decision implementing the reduction, to take effect March 1, 2014. In the Veteran’s Notice of Disagreement, dated November 2014, the Board notes the Veteran has disagreed with the propriety of the proposed rating reduction. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The issue at hand is the propriety of a rating reduction for the Veteran’s service connected PTSD. 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, 38 C.F.R. § 3.105 requires the following: 1) a rating proposing the reduction or discontinuance setting forth all material facts and reasons, and 2) notification to the Veteran at his or her latest address of record of the contemplated action and detailed reasons for that action. The notice will advise the Veteran that he or she has 60 days to present additional evidence to show that compensation payments should be continued at their present level. 38 C.F.R. § 3.105(e). The notice will also advise the Veteran of his or her right to a predetermination hearing, which must be requested within 30 days of the notice to continue the benefits at the current rate. 38 C.F.R. § 3.105(i). Here, the Board notes VA sent the Veteran a notification letter dated September 16, 2013, with a copy to his representative at the time, reflecting the above procedural requirements. Further details of the procedural requirements for reduction will be discussed below in the pertinent section. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Propriety of Reduction The Board turns its attention to the rating reduction for the Veteran’s PTSD disability. In a November 2014 notice of disagreement, the Veteran contends that the reduction from 50 percent to 30 percent for his PTSD was improper. Procedural Requirements for Reduction In resolving this issue, the Board must first address whether VA followed the procedural protections for reductions in evaluation when it reduced the Veteran’s PTSD disability rating from 50 percent to 30 percent. When reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at the latest address of record of the contemplated action and furnished detailed reasons. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In this case, in a September 2013 rating decision, the Veteran’s PTSD rating was proposed to be reduced from 50 percent to 30 percent, which would reduce the Veteran’s total compensation payable from 70 percent to 60 percent. Here, the Veteran’s total compensation payable was decreased by 10 percent. Thus, the added notice required under 38 C.F.R. § 3.105 applied. A rating decision containing all of the information required by 38 C.F.R. § 3.105(e), which include the proposed rating decrease from 50 percent to 30 percent for his PTSD, was sent to the Veteran and his representative in September 9, 2013, with a separate notification letter dated September 16, 2013 detailing the proposed decrease along with the Veteran’s rights pertinent to a proposed reduction. The Veteran was afforded 60 days to respond to the September 2016 rating decision which contained all information pursuant to 38 C.F.R. § 3.105(e). Then, in December 2013, a final rating reduction was sent to the Veteran and his representative, which was to be in effect March 1, 2014, the end of the month following 60 days notice to the Veteran of the reduction. Having found that the procedural protections of 38 C.F.R. § 3.105(e) do apply, and have been satisfied, the Board turns to the question of whether the rating reduction for the Veteran’s PTSD was factually appropriate. Substantive Requirements for Reduction In every reduction case, there must be a finding of improvement. In Murphy v. Shinseki, 26 Vet. App. 510 (2014), the Court of Appeals for Veterans Claims (CAVC) stated that the RO and Board are required “in any rating-reduction case” to determine (1) “based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability”; (2) “whether the examination reports reflecting such change are based upon thorough examinations”; and (3) whether any improvement “actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work” (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13 (1992). Murphy, 26 Vet. App. at 517 (quoting Brown v. Brown, 5 Vet. App. 413, 421 (1993)). Similarly, Faust v. West held that VA must comply with regulations “applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999); Brown, 5 Vet. App. at 420); Murphy, 26 Vet. App. at 517. Even where the assigned rating is less than five years old and 38 C.F.R. § 3.344(c) applies, improvement in a Veteran’s ability to function must still be shown under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. The burden is on the Board to establish by a preponderance of evidence that the rating reduction was warranted. Brown, 5 Vet. App. at 420. There must be actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned Diagnostic Code. Under 38 C.F.R. § 3.344(c), if a disability rating has been in effect for fewer than five years, a reduction must be based upon a finding of “improvement” in the disability. The improvement must also reflect an actual improvement in the ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. A determination that a disability has improved must be based upon a review of the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017); see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (“[w]hether or not a disability has improved cannot be determined without reference to prior records detailing the history of that condition”). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. The evidence of record at the time of the rating reduction must support the reduction and the pertinent post-reduction evidence favorable to restoring the rating must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). When determining whether improvement is shown, the last examination upon which the rating at issue was based or continued is generally the comparison point. See Hohol v. Derwisnki, 2 Vet. App. 169 (1992). But see Collier v. Derwinski, 2 Vet. App. 247 (1992) (holding that where a rating is continued to determine if improvement was shown the comparison point could also include prior examinations). Examinations reflecting improvement must be thorough and adequate. Faust v. West, 13 Vet. App. 342, 349 (2000); see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that an examiner’s failure to review the claims file rendered the reduction decision void). The provisions of 38 C.F.R. § 3.344 (a) require a review of the entire record of examinations and the medical-industrial history to ascertain whether the recent examination was full and complete. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings will not be reduced on any one examination, except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and it is reasonably certain that any material improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344. If doubt remains, after according due consideration to all the evidence developed by the several items discussed in 38 C.F.R. § 3.344(a), the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses. 38 C.F.R. § 3.344(b). The provisions of paragraphs 3.344(a) and 3.344(b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). In this case, the rating at issue had been in effect for less than 5 years at the time of the reduction. 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). 38 C.F.R. § 4.130. 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. Id. Evidence and Analysis As stated in the introduction, a September 2013 rating decision proposed the reduction of the rating for PTSD from 50 percent to 30 percent, to be effective March 1, 2014. The RO based its decision on a review PTSD VA examination from May 2013. When determining whether improvement is shown, the last examination upon which the rating at issue was based or continued is generally the comparison point. See Hohol v. Derwisnki, 2 Vet. App. 169 (1992). But see Collier v. Derwinski, 2 Vet. App. 247 (1992) (holding that where a rating is continued to determine if improvement was shown the comparison point could also include prior examinations). As such, the Board will review VA examinations and treatment notes both before and after the May 2013 VA examination in calendar order, to include the August 2011 VA examination that led to the 50 percent rating for the Veteran’s PTSD. In November 2010, the Veteran was seen in a VA medical facility as a walk-in regarding his symptoms of PTSD. He was seen by a VA psychologist who recorded the Veteran’s statements of increasing stress from his job misfortunes. He reported feelings of isolation from his family and that he felt depressed and had difficulty sleeping. The psychologist noted the Veteran to be fully oriented in all spheres, well-groomed and appropriately dressed, with dysthymic mood and congruent affect. Thought processes were goal oriented and linear, and no delusions or hallucinations were noted. Insight was considered fair and judgment was good. The psychologist recommended regular therapy appointments. The Veteran had another session with the same VA psychologist regarding his PTSD symptoms in January 2011. The Veteran’s mood had improved since the last session and he denied suicidal ideation. The Veteran again was considered alert and oriented in all spheres, with normal speech, language, and euthymic mood and congruent affect. Thought processes, judgment, and memory were considered good. A GAF score of 55 was noted. The Veteran had similar sessions with similar observations with the same VA psychologist in February, April, and July 2011. The Veteran received a review PTSD VA examination from a VA clinical psychologist in August 2011. A previous diagnosis of chronic, mild PTSD was continued. This examiner, not the Veteran’s regular psychologist, characterized the Veteran’s PTSD as “mildly impairing,” and noted some of his stress and impairment was related to financial and housing difficulties. Because of those external sources of stress, the examiner evaluated the occupational and social impairment of the Veteran 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. The examiner noted the stresses of housing and finance for his family were contributing to alcohol use. The Veteran indicated he had not worked since October 2010 and the lack of income was a major stressor at the time. The examiner recorded symptoms of depressed mood, chronic sleep impairment, and mild memory loss. The examiner considered the Veteran’s affect as mildly restricted, speech was goal directed and logical, with mood being “normally good.” The examiner did note that the Veteran’s PTSD symptoms could cause clinically significant distress or impairment in social and occupational areas, however. In October 2012, the Veteran met with a VA psychologist for a continuing series of therapy to address the Veteran’s PTSD. The psychologist reported that the Veteran was displaying mostly mild symptoms of PTSD with occasional moderate symptoms of PTSD when he under greater stress, such as his recent knee operation. The Veteran indicated to the psychologist that he had no major needs for treatment at the time, and “just checking in about [every] six months to verify his symptoms continue to be relatively mild.” The psychologist noted the Veteran to be alert and oriented, well groomed, and appropriately dressed with euthymic mood and congruent affect, with no evidence of illusions or hallucinations. Insight and judgment were assessed as good. The recorded diagnosis was chronic PTSD and alcohol dependence, with a GAF score of 65 noted. The Veteran received a VA review PTSD examination in May 2013. This compensation and pension examiner, a VA psychologist, continued the Veteran’s previous diagnosis of PTSD and cited no other current mental health diagnoses; a GAF score of 65 was recorded. This examiner summarized the Veteran’s 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. The Veteran indicated that he had been retired since 2009 and now tinkers around the house. The Veteran stated that he felt he had difficulty interacting with others and had increased anxiety and fatigue being around crowds. The examiner considered the Veteran adequately groomed and dressed, with a cooperative interpersonal style that was responsive throughout the evaluation. Responses were logical, linear, and goal directed, with normal speech and eye contact. Mood was euthymic and affect was congruent with mood. The examiner found no evidence of a formal thought disorder, and the Veteran denied psychosis, to include any auditory or visual hallucinations. Insight and judgment were considered to be intact, and memory was normal. The examiner recorded symptoms of depressed mood, anxiety, and chronic sleep impairment, and concluded with the comment that the Veteran’s “observed and reported behaviors indicate [the Veteran] may have difficulty with interpersonal relations, his mental health symptoms are not of such intensity that would preclude occupational functioning.” The examiner also noted that the external stresses of the family’s finances and earlier housing eviction had been resolved for the time being, reducing the Veteran’s overall stress symptoms. The Veteran had a recurring session with a VA psychologist in June 2013 regarding his PTSD, where he reported mental stresses including hypervigilance that he attributed to his recent knee operation. The psychologist noted that the Veteran continued to talk with younger Veterans about their service in Iraq and Afghanistan, and that helped him to come to terms with his own combat service in Vietnam. This psychologist, the same as the one for the October 2012 session noted above, recorded a very similar report regarding the Veteran’s current diagnosis and symptoms in that session. This psychologist concluded with the assessment that although the Veteran continues to experience mild symptoms of PTSD, that he seemed to be applying skills and concepts learned in individual therapy to adequately manage those symptoms. She opined that the Veteran is likely to maintain a decent quality of life with minimal therapeutic support and can be seen every six months. The Veteran had another recurring session in November 2013 with the same VA psychologist as October 2012 and June 2013. The Veteran’s chief complaint was continuing hypervigilance and anxiety, and he also reported some instances of nightmares. The Veteran also stated that he thinks he is doing OK with supportive therapy and pharmacotherapy. The Veteran expressed concern that his current progress was due in part to his therapy, and he indicated concern that his benefits might be lowered because of his progress. This psychologist noted the Veteran to be alert and oriented in all spheres, well-groomed and appropriate speech and eye contact, euthymic mood with congruent affect, no perceptual disturbances, with good insight and judgment. This psychologist concluded that the Veteran had benefited over the past four years from psychotherapy that helped him challenge maladaptive beliefs he has about himself, the world, and others in his life as a function of the traumatic experiences he had in the military. The concluding statement was that the Veteran would likely benefit from occasional supportive therapy that provides an ongoing review of PTSD and strategies for coping with the symptoms. In February 2014, the Veteran had a session with a different VA psychologist as part of his recurring therapy for his PTSD. The Veteran was assessed as alert, dressed appropriately, and in no acute distress. His speech was normal and mood was mildly anxious with congruent affect. Attention, concentration, memory, thought process, thought content, judgment, and insight were all reported as good. This psychologist indicated his plan to transition the Veteran to regular 3-month sessions for the time being with a VA therapist that was part of the treatment team. In May 2014, the Veteran had another session with the same VA psychologist, and that his primary complaint was that his right shoulder and knee replacement were painful enough to interfere frequently with his sleep. This psychologist summarized the Veteran with very similar comments as in the previous session noted above, and no recommendation other than to continue with sessions every 3 months for the near future. The Veteran had a session in May 2015 with his VA licensed clinical social worker regarding his PTSD. The Veteran complained of pain in his replaced knee, but was otherwise appropriately dressed, with friendly social interaction, normal eye contact, normal speech, logical cognition, coherent thought processes, no psychosis, self-aware insight, and good judgment. His mood was calm and his affect appropriate to the situation. Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). Here, the Board notes that the Veteran’s previous PTSD rating of 50 percent had been in effect for less than five years, and as such, special protections afforded ratings which have stabilized or been in effect for greater than five years do not apply here. 38 C.F.R. §§ 3.344, 3.951. In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In light of all the medical evidence, the Board notes the worst case VA PTSD examination at the beginning of the examined period of this appeal, the August 2011 examination, which led to the increased rating at the time of 50 percent. Since that worst case examination, psychiatric examinations and periodic treatment sessions indicate consistent improvement in the Veteran’s PTSD symptoms and his ability to deal with his family and the outside world in light of those symptoms. Thus, the Board finds, based on the consistent medical evidence of multiple VA examinations and treatment notes, that sustained material improvement has been shown since that August 2011 VA examination, to include the May 2013 VA examination and continuing beyond that time, and that the reduction from a 50 percent rating to a 30 percent rating, effective March 1, 2014, is therefore proper. 38 C.F.R. § 3.344(c); Murphy v. Shinseki, 26 Vet. App. 510 (2014); Brown v. Brown, 5 Vet. App. 413, 421-422 (1993). The Board also notes that at the time of the implementation of the 50 percent PTSD rating that the Veteran was undergoing significant external stresses related to his finances and being evicted from his home, along with his wife and daughter. Since that period, the Board notes the Veteran had moved to a new home and his financial situation has stabilized in his retirement. VA is not limited to medical indicators of improvement. See Faust v. West, 13 Vet. App. 342, 350 (2000). 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. (Continued on the next page)   Consequently, the Board finds that the Veteran’s reduction in rating from 50 percent to 30 percent effective March 1, 2014 is supported by the evidence and the claim that it is improper is denied. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel