Citation Nr: 18153181 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-24 682 DATE: November 27, 2018 ORDER The 70 percent disability rating for posttraumatic stress disorder (PTSD) is restored, effective June 1, 2015, and the appeal is granted. REMANDED 1. The issue of entitlement to service connection for hypertension is remanded. 2. The issue of entitlement to service connection for heart disease is remanded. 3. The issue of entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT The Veteran’s service-connected PTSD did not show actual improvement under the normal circumstances of life during the pertinent appeal period. CONCLUSION OF LAW The reduction of the 70 percent rating for service-connected PTSD was improper. 38 U.S.C. §§ 1155, 5103, 5103(a), 5112(b)(6) (2012); 38 C.F.R. §§ 3.103(b), 3.105(e), 4.1, 4.2, 4.7, 4.115(a), 4.115(b), Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to July 1969. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The reduction of the Veteran’s rating for his service-connected PTSD from 70 percent to 30 percent was improper, and the 70 percent rating is restored. The Board finds that the reduction of the Veteran’s rating for his service-connected PTSD from 70 percent to 30 percent was improper, and thus restores the 70 percent rating, effective June 1, 2015. Notwithstanding the procedural steps that must be taken, a rating reduction is not proper unless the veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the veteran’s disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105(e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. 38 C.F.R. § 3.105(e), (i)(2)(i). The Veteran was notified of the RO’s intent to reduce his rating for his service-connected PTSD by a letter dated in December 2014. Thereafter, he was afforded an opportunity to have a predetermination hearing and given at least 60 days in which to present additional evidence. Final action to reduce the rating for his disability was taken pursuant to 38 C.F.R. § 3.105(e) in a March 2015 rating decision. The rating reduction was made effective beginning June 1, 2015. Consequently, the Board finds that the RO did not violate any of the procedures required under 38 C.F.R. § 3.105, as the Veteran was notified of his rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted (“the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires”). 38 C.F.R. § 3.105(e). Therefore, having decided that the process required to reduce the Veteran’s rating was correctly followed by the RO, the next question to be addressed is whether, given the available evidence, a reduction to 30 percent was proper. The Veteran’s PTSD has been evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.71a, DC 9411. Under this code, a 30 percent rating is assigned when a veteran’s psychiatric disorder causes 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when a veteran’s psychiatric disorder causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the 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. 38 C.F.R. § 4.130, DC 9411. A 100 percent disability rating is assigned 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, or for the veteran’s own occupation or name. 38 C.F.R. § 4.130, DC 9411. As noted in the applicable rating decision, the Veteran’s 70 percent evaluation was based upon a March 2014 VA examination report. In that examination report, he described symptoms including intrusive memories, nightmares, flashbacks, avoidance behaviors, persistent negative beliefs, feelings of detachment, a persistent negative emotional state, markedly diminished interest in activities, impaired impulse control, hypervigilance, exaggerated startle response, sleep impairment, depression, anxiety, concentration difficulties, and persistent delusions or hallucinations. The examiner further noted mild memory loss, flattened affect, difficulty understanding complex commands, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran also reported experiencing suicidal ideation, with no plan or intent. The examiner concluded that he demonstrated occupational and social impairment with deficiencies in most areas. In March 2015, the RO reduced the Veteran’s disability rating for his PTSD to 30 percent based upon a November 2014 VA examination. At the time of the examination, the Veteran reported symptoms including depression, intrusive thoughts, nightmares, feelings of detachment, avoidance behaviors, loss of enjoyment in activities, sleep impairment, anxiety, irritability, disturbances of motivation and mood, and concentration difficulties. He also stated that he engaged in minimal social activity outside of his family. The examiner concluded that the Veteran demonstrated occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform only during periods of significant stress. In response to the proposed rating reduction, the Veteran submitted a private psychological evaluation in January 2015. The evaluation report identified symptoms including severe anxiety, hallucinations, hypervigilance, nightmares, depression, recurring panic attacks, and flashbacks. In an April 2015 statement, the Veteran reported symptoms including flashbacks, anger, depression, intrusive thoughts, nightmares, memory loss, and panic attacks more than once per week. He further stated that he experienced suicidal ideation and felt as though he did not want to live anymore. At an April 2016 VA psychological examination, the Veteran stated that he could no longer attend family functions or restaurants due to his anxiety. He reported symptoms including intrusive thoughts, nightmares, avoidance behaviors, feelings of detachment, a persistent inability to experience positive emotions, markedly diminished interest in activities, hypervigilance, exaggerated startle response, sleep impairment, concentration difficulties, anxiety, suspiciousness, disturbances of motivation and mood, as well as panic attacks occurring weekly or less often. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Additionally, post-service VA treatment records since the November 2014 VA examination have documented evidence of suicidal ideation, as well as increased irritability. See December 11, 2014 VA Treatment Record. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 70 percent disability rating versus the demonstrated symptomatology since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust, supra. Rather, the November 2014 and April 2016 VA examination reports, January 2015 private examination report, and Veteran’s lay statements serve to support the 70 percent evaluation, as they indicate that his PTSD symptomatology continued to result in impairment in occupational and social functioning with deficiencies in most areas, accompanied by symptoms including severe anxiety and irritability. The Board notes that the April 2016 examiner opined that the November 2014 VA examination report was a more accurate reflection of the Veteran’s symptomatology than the March 2014 examination report. However, the Board is persuaded by the additional medical evidence of record, as well as the Veteran’s statements. Indeed, the Veteran consistently reported symptoms including suicidal ideation, panic attacks, disturbances of motivation and mood, concentration difficulties, avoidance behaviors, feelings of detachment, as well as intrusive thoughts. Furthermore, post-service VA treatment records noted his reports of irritability, as well as suicidal ideation following the date of the examination on which the reduction was based. The evidence of record indicates that the Veteran’s disability picture since June 2015 has not been significantly different from his disability picture at the March 2014 examination, which had been the basis of the 70 percent rating for PTSD. Therefore, the Board finds that the reduction of the 70 percent disability rating was improper and that the restoration of the 70 percent rating for service-connected PTSD is warranted, effective June 1, 2015. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. REASONS FOR REMAND The issues of entitlement to service connection for hypertension, heart disease, and COPD are remanded. With regard to the issues of entitlement to service connection for hypertension, heart disease, and COPD, the Board finds that in a February 2018 notice of disagreement, the Veteran disagreed with denial of service connection for these issues in the January 2018 rating decision. As the RO has not issued a statement of the case addressing the service connection claims, the Board is required to remand these claims. Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: Issue a statement of the case on the issues of entitlement to service connection for hypertension, heart disease, and COPD. Notify the Veteran of his appeal rights with respect to these issues. (Continued on the next page)   If a timely substantive appeal is received, return the case to the Board. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel