Citation Nr: 18153315 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-54 579 DATE: November 27, 2018 ORDER Restoration of the prior 50 percent rating for posttraumatic stress disorder (PTSD), effective July 1, 2015, is granted. FINDING OF FACT The evidence shows that there has not been an improvement in the Veteran’s PTSD disability level that actually reflects an improvement in the ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW Restoration of the prior rating 50 percent rating from July 1, 2015, is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION In any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran was granted service connection for PTSD in November 2008 and was assigned a rating of 30 percent from September 2008. In August 2009, the RO increased the initial rating to 50 percent effective September 2008. The 50 percent rating was based on a July 2008 VA contract examination. In that examination report, the Veteran reported currently working on base in a motor pool where he described a fair relationship with his coworkers, did not talk with his supervisor but denied losing any time from work due to PTSD. The examiner noted complaints of difficulty falling or staying asleep, irritability and outbursts of anger, exaggerated startle response, difficulty concentrating and hypervigilance. On examination, normal grooming, orientation, communication, judgment and behavior were noted although the examiner noted that the Veteran had somewhat of a nonchalant and uncaring attitude. Affect and mood were flat. Some general problems with concentration were noted and he reported feeling suspicious of people generally. Panic attacks, suicidal ideation, and hallucinations were all denied although the Veteran reported feeling homicidal towards everyone but without intent. Overall, the examiner assigned a Global Assessment of Functioning (GAF) score of 45. The Veteran filed a claim for service connection for traumatic brain injury in April 2012, and as a result was provided with VA examinations in September 2013 which included a VA PTSD examination. In that report, the examiner noted that the Veteran reported continued difficulty with anger, including directed at his girlfriend but without violence. He endorsed memory problems, including occasionally forgetting appointments but denied having problems at work. On examination, the Veteran was noted to have normal judgment, orientation, grooming, and thought process. The examiner noted full affect, euthymic mood but irritability at times and concentration was focused. Suicidal ideation and homicidal ideation were all denied. The examiner noted symptoms of anxiety and mild memory loss and remarked that the current severity of his PTSD was mild and that it most negatively affected his social functioning. Following this examination, in a September 2013 rating decision, the RO proposed to reduce the Veteran’s PTSD evaluation from 50 percent to 30 percent and provided the Veteran with adequate notice of such. In an April 2015 rating decision, the RO reduced the 50 percent rating to 30 percent effective July 1, 2015. In December 2015, the Veteran underwent another VA PTSD examination. The examiner there stated that the Veteran endorsed ongoing symptoms of PTSD that were generally consistent with the 2013 VA examination and indicated that, overall, the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily. In December 2016, the Veteran submitted private mental health treatment records dated from October and December 2015. In October 2015, the Veteran reported feeling a lot of anger and rage, that he had quit jobs for fear that he will act out on the job, and that he is afraid that he will lose his relationship. He reported vivid dreams and described moments of reexperiencing. He reported feeling sad at times, that he has low energy and mood, that he is often fatigued and that he has days where he feels as though life is not worth living. The Veteran reported feeling anxiety most days, as well as nervousness, irritability, fear and restlessness. He reported that his family relationships were most impaired. The Veteran indicated that he was currently a university student and that although he had been working at the Post Office from 2012 to 2013 he had to quit due to problems managing his emotions because he was getting irritable with others. On examination, the examiner noted anxious, depressed and labile mood with congruent affect and that he was very distraught when talking about his memory of deployment. The assessment was PTSD, depression and insomnia. The examiner noted that although the Veteran appeared well, when talking about traumatic experiences, he began crying and needing to compose himself. In December 2015, the Veteran reported essentially no change in symptoms. As stated above, the reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer, 2 Vet. App. 277. Here, although the September 2013 examination arguably shows that there was improvement in the Veteran’s condition, the October and December 2015 private treatment records cast doubt on that conclusion. Indeed, like the July 2008 examination, these records show that the Veteran still experiences substantial anger, irritability, and difficulty sleeping. In addition, the more recent records show that the Veteran reported reexperiencing of traumatic events, low energy, fatigue, impaired family relationships and that he had to quit his job due to difficulties managing his emotions. To the extent the December 2015 examination supports the idea that there was improvement, and is therefore unfavorable evidence, because this evidence was not of record at the time of the reduction, it may not be considered. Id. (Continued on the next page)   In sum, the evidence shows that there has not been an improvement in the Veteran’s PTSD disability level that actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Accordingly, restoration of the prior rating 50 percent rating for PTSD from July 1, 2015, is warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel