Citation Nr: 18153222 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16 25-836 DATE: November 27, 2018 ORDER Restoration of a 100 percent evaluation for posttraumatic stress disorder (PTSD) effective October 1, 2015, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. Restoration of special monthly compensation effective October 1, 2015, is denied. FINDINGS OF FACT 1. An August 2015, reduction of the disability evaluation for PTSD from 100 percent to 50 percent effective October 1, 2015, was made with evidence of clear and sustained improvement in the disorder; it was made with adherence to applicable adjudication standards. 2. Starting October 1, 2015, the Veteran is not in receipt of a single service connected disability rated as total, nor does the competent evidence of record demonstrate that the Veteran is housebound. 3. It is not reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for restoration of a 100 percent schedular evaluation for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344, 4.130, Diagnostic Code 9411 (2017). 2. Effective October 1, 2015, the criteria for SMC based on housebound status are not met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.350, 3.352(a) (2017). 3. The criteria for entitlement to TDIU, have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1968 to March 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2015, rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Whether the reduction of the Veteran's disability rating for posttraumatic stress disorder (PTSD) from 100 percent to 50 percent, effective October 1, 2015, was proper Rating reductions are permissible under certain circumstances. But when the ratings agency contemplates action which would result in the reduction of compensation payments, it must first prepare a proposed reduction, setting out all the material facts and reasons for the reduction. See 38 C.F.R. § 3.105 (e). The period between the effective date of the Veteran’s 100 percent disability rating (November 2007) and the effective date of the AOJ’s reduction of that rating (August 2015) is more than five years, which means that any reduction in the rating must also satisfy the provisions of 38 C.F.R. § 3.44 (a) and (b) (2017). See Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). Before implementing a reduction, it is necessary to ascertain, based on a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in the service-connected disability has actually occurred and that such improvement reflects an improvement in the claimant’s ability to function under the ordinary conditions of life and work. See Id. at 420-21. Consistent with 38 C.F.R. § 3.105 (e), the AOJ prepared a proposal to reduce the Veteran’s compensation benefits, together with an explanation for the proposal, and mailed a copy to him at his most recent address of record. In a June 2015 letter, the Veteran was advised of his right, within the next 60 days, to submit evidence showing that compensation payments should continue at their previous level. He was also notified of his right to testify at a pre-reduction personal hearing. Thus, the Board finds that the provisions of 38 C.F.R. § 3.105 (e) are applicable and were met. The Board must, however, still consider whether the reduction was factually appropriate based upon the evidence of record. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344 (a) and (b), which sets forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). In determining whether a reduction was proper, the Board must focus upon 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 actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. The record indicates that in a November 2007, rating decision, the RO awarded a 100 percent evaluation for PTSD. An evaluation of 100 percent was assigned from June 22, 2007. In the decision, the RO noted that as there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. In the November 2007 decision, the RO cited as support for the 100 percent evaluation, the statement made by the July 2007 examiner, that the Veteran was unable to maintain a formal regimen to be gainfully employed or to volunteer. In November 2009, following a November 2009 examination, the RO proposed to reduced PTSD from 100 to 30 percent. In July 2013, following a July 2013 examination, the RO proposed to reduce the PTSD evaluation from 100 to 70 percent. In June 2015, following a May 2015 examination, the RO proposed to reduce the PTSD evaluation from 100 to 50 percent. In August 2015, the RO reduced the disability evaluation of PTSD to 50 percent effective October 1, 2015. The law also provides that a Veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2012). When a Veteran’s disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10; Brown v. Brown, 5 Vet. App. at 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, 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. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections set forth in 38 C.F.R. § 3.344. That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. Under 38 C.F.R. § 3.344, if a rating has been in effect for five years or more, there must be material improvement in the disability before there is any rating reduction. In such cases the provisions of 38 C.F.R. § 3.344 (a), (b) are for application. Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). Thus, for disabilities that have continued for five years or more, as in the instant case, the issue is whether material improvement in a Veteran’s disability was demonstrated in order to warrant a reduction in such compensation benefits. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). In such cases examinations less full and complete than those on which payments were authorized will not be used as the basis for reductions. 38 C.F.R. § 3.344(a). A review of the record shows the Veteran’s PTSD materially improved so as to warrant a reduction. Under the applicable rating criteria, a 50-percent rating will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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. 38 C.F.R. § 4.130, DC 9411. A 70-percent rating applies when a veteran’s occupational and social impairment reflects 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 intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is 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, own occupation, or own name. Id. The RO in 2015 articulated an evidentiary basis for concluding that the requirements of section 3.344 were met, such as to impose a reduction of a rating that had been in effect for over 5 years. In addition, the subsequent statement of the case (SOC) and supplemental statements of the case (SSOC) contained references to the applicable version of the regulation. Notably, the RO found that the overall evidentiary record showed that the severity of the Veteran’s PTSD more nearly approximated the criteria for a 50 percent rating based on findings of occupational and social impairment with reduced reliability and productivity. The Board agrees. In this regard, upon VA examination in July 2007, the Veteran was taking anti-depressants, and sleep medication. He had moderately diminished interest most days, moderate insomnia most nights, and moderate loss of energy most days. He had feelings of worthlessness, difficulties concentrating as he was disorganized forgetful, distractible. He was frustrated and easily overwhelmed. He had recurrent thoughts of death, and suicidal thoughts. He reported serious panic symptoms of palpitations, pounding heart, sweating, trembling or shaking sensations, feeling of choking, chest pain, nausea, or abdominal distress, feeling dizzy, light headed, faint, depersonalization, fear of losing control, paresthesias, chills or hot flushes, three to four times per week. He reported isolating to avoid verbal outbursts. He was able to engage with his wife, and grandchildren. He was a deacon at church, volunteered at a nursing home, and reported having three close friends who she sees at church. He stated that at times he has no energy for these activities, and other times must leave them if he becomes too agitated. He had worsening problems with concentration, attention, and organization. He was labile, and uncomfortable around people. He reportedly was volunteering once or twice per week, however his energy to volunteer was decreasing, as he was less able to tolerate the basic expectations of his volunteer position. He was deemed unable to work due to the severity of his PTSD. He had intrusive thoughts, impaired memory and problem solving, become agitated with his wife. He was unable to concentrate and was easily frustrated. Whereas, on examination in November 2009, he reported going on a cruise with his wife that May and having really enjoyed it. He reported being an active member of the household, regularly taking care of chores. He has a son, that he has maintained a good relationship, and with his grandchildren, actively engaging with them when present. He reported being active in church and in the Masons. He also was volunteering at a local hospital and nursing home at least once per week. He was oriented to person time and place, his attention, psychomotor activity unremarkable, speech was clear and coherent, he was cooperative and attentive, affect constricted, and mood down, his thought process and content was unremarkable, no delusions, no hallucinations, no suicidal thoughts. The extent of his impulse control was fair, and he used isolation at times to maintain effective control. He reported having no significant occupational impairment due to mental health symptoms. His symptoms were assessed as moderate to serious and result in moderate functional impairment. In July 2013, the Veteran underwent an examination. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of in ability to perform occupational tasks, although generally functioning satisfactorily with normal routine, behavior, self-care and conversation. His wife passed away in June 2011. He maintained regular contact with his son and grandchildren who he was close to. He was still working in the house or yard, attended church two to three times per week. He reported friends, and having adequate support. He was also attending meetings twice monthly at a masonic lodge. He reported he had not attempted to return to work. He was participating as a volunteer at a hospital, however he had stopped recently because he no longer felt enjoyment. He had a depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. On examination he had no impairment in thought processes, he denied suicidal or homicidal ideation. His affect was mildly dysphoric. His attention and concentration was mildly impaired. He was oriented to time person and place, and mood good eye contact. VA examination dated May 2015, continued to show sustained material improvement in the Veteran’s PTSD. He was found to have occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks thought generally functioning satisfactorily with normal routine behavior, self-care and conversation. He reported frequent depressed mood, some lack of motivation for daily activity, and little interest in previously enjoyed activities. The examiner noted some of the Veteran’s depression may be related to his general physical health status as he was unable to complete common tasks as easily or quickly as when he was younger and healthier. He maintained good contact with his son and grandchildren whom he was seeing frequently. He had friends at church. On examination he had depressed mood, anxiety, sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that his PTSD and depression symptoms are chronically moderate. The impact on his ability to function in an occupational environment, was occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks. His PTSD symptoms of anxiety may be moderate in severity and could make it more difficult for him to concentrate on the tasks at hand. His productivity could be decreased to some degree, as anxiety may decrease efficiency. His symptoms would also likely impact his interpersonal functioning in employment setting. Symptoms of irritability would make it more difficult for him to interact easily or effectively with the public or coworkers. Though the reduction took place prior to the effective date of reduction, it bears noting that on examination in April 2016, the Veteran again had symptoms of occupational and social impairment occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks though generally functioning satisfactorily, with normal routine behavior, self-care and conversation. There were no instances of reports of homicidal or suicidal ideation, and his thought processes were consistently reported as normal. Additionally, the Veteran got married in April 2018. As noted above, under 38 C.F.R. § 4.130, a 50-percent rating will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The pertinent evidence delineated above shows that there was a sustained improvement in the Veteran’s PTSD symptoms. Starting in 2009, the RO routinely proposed reducing the PTSD evaluation as there was continuous demonstration of improvement in symptoms. In fact, there is some disparity in the record as to the severity of the Veteran’s PTSD. The Veteran’s PTSD did not actually result in 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; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name, as set forth in the criteria for a 100 percent rating. In fact, the Veteran has maintained contact with his family, has remarried, it would appear that his disability more nearly approximated the criteria for a 50 percent rating for reduced reliability and productivity. Accordingly, the Board finds that the disability rating reduction to 50 percent effectuated by the rating decision in August 2015, was in accordance with the requirements of 38 C.F.R. § 3.344 (a) and (b), as there was sustained material improvement in the Veteran’s PTSD shown on multiple VA examinations and in VA outpatient treatment records. Thus, the 100 percent evaluation for PTSD is not restored. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of- the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990 2. Whether discontinuance of entitlement to special monthly compensation effective October 1, 2015, is proper SMC may be awarded at the housebound rate if a veteran has a single service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of service-connected disability or disabilities, is permanently housebound. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i) (2017). A veteran will be determined to be permanently housebound when he is substantially confined to his house (or ward or clinical areas, if institutionalized) or immediate premises due to disability or disabilities when it is reasonably certain that such a condition will remain throughout his lifetime. Id. In an August 2011, rating decision, the RO granted SMC housebound, pursuant to 38 U.S.C. § 1114(s), effective April 30, 2010. At the time of the grant, the Veteran was service connected for PTSD with a 100 percent evaluation from June 22, 2007, left knee condition with a 30 percent evaluation from April 30, 2010, right knee condition with a 30 percent evaluation from April 30, 2010, hearing loss with a 20 percent evaluation from April 30, 2010, coronary artery disease with a 10 percent evaluation, and right knee instability with a noncompensable evaluation. He was granted SMC(s), on account of the 100 percent evaluation for PTSD, and the additional disabilities independently ratable as 60 percent or more from April 30, 2010. In June 2015, the RO notified the Veteran of the proposal to discontinue entitlement to SMC. And as stated above, effective October 1, 2015, entitlement to SMC (s) was terminated because the criteria regarding housebound status was no longer met effective October 1, 2015. The Veteran had been in receipt of SMC at the housebound rate on account of a single service connected disability rated as total with additional disabilities independently ratable at 60 percent or more. Effective October 1, 2015, the Veteran no longer is in receipt of a single service connected disability rated as total. Additionally, the criteria for housebound on account of being permanently housebound has not been met. The Veteran is not confined to his home, as the evidence as indicated above, indicates he has remarried and is an active member of his community and in the lives of his child and grandchildren. As the Veteran no longer meets the criteria for SMC (s), discontinuance of entitlement to special monthly compensation effective October 1, 2015, is proper.   3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is either one disability ratable at 60 percent or more, or, if more than one disability, at least one disability is ratable at 40 percent or more and the multiple service connected disabilities combine to a disability rating of 70 percent or greater. Id. While the Veteran may be unemployed, the dispositive issue is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither appellant’s nonservice-connected disabilities nor may advancing age be considered. Service connection is in effect for coronary artery disease rated as 10 percent disabling from January 12, 1998, and 60 percent from April 16, 2015, PTSD rated as 100 percent from June 22, 2007, and 50 percent from October 1, 2015, status post right total knee arthroplasty rated as 30 percent from April 30, 2010, status post left total knee arthroplasty rated as 30 percent disabling from April 30, 2010, bilateral hearing loss rated as 20 percent disabling from April 30, 2010, and moderate lateral instability of the right knee with a noncompensable rating from April 30, 2010 to October 1, 2015. As of April 30, 2010, the Veteran is in receipt of a combined evaluation of 100 percent, and from October 1, 2015, he is in receipt of a 90 percent combined evaluation. As such, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a total rating based on individual unemployability. Therefore, the Veteran is eligible for an individual unemployability rating if he is unable to secure or follow a substantially gainful occupation as a result of his disability. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the United States Court of Appeals of Veterans Claims (Court) held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. In Hodges v. Brown, 5 Vet. App. 375 (1993), the Court found that although a Veteran could undertake employment despite his service-connected disabilities, he was unemployable because he was unable to secure employment due to his disabilities. In April 2015, the Veteran filed an application for TDIU. He indicated he last worked in 1991, for Wayne Supple, as a heavy equipment mechanic On examination in May 2015, the examiner noted the Veteran’s PTSD symptoms of anxiety may be moderate in severity and could make it more difficult for him to concentrate on the tasks at hand. His productivity could be decreased to some degree, as anxiety may decrease efficiency. His symptoms would also likely impact his interpersonal functioning in an employment setting. Symptoms of irritability would make it more difficult for him to interact easily or effectively with the public or coworkers. On examination in May 2015 and April 2016, the examiner concluded the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily with normal routine behavior, self-care and conversation. On examination in April 2016, the Veteran reported his reliability and productivity were generally adequate despite his interpersonal problems. In August 2015, he underwent a heart examination. The Veteran had a METs level of 3 to 5, indicating he would be capable of light yard work, mowing the lawn, or brisk walking. The examiner noted the Veteran has dyspnea with mild to moderate exertion, which would preclude him performing his prior job as a heavy equipment operator. The Veteran has not submitted additional evidence to the effect that he is unable to obtain employment. The preponderance of the evidence shows that the Veteran is able to obtain employment. The evidence shows that the Veteran has regularly participated in volunteer related activities, and is an active member of his community. Though the recent heart examiner found the Veteran would not be able to perform in his prior employment as a machine operator, there was no finding that he would be precluded from any other form of employment. At the most recent psychiatric examination the Veteran relayed that he felt he was able to   maintain reliability and productivity. Accordingly, the Board finds a total disability rating is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel