Citation Nr: 18153523 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-02 544 DATE: November 28, 2018 ORDER The appeal to reopen the claim of entitlement to service connection for a back disability is granted. Entitlement to service connection for a back disability is granted. Restoration of the 50 percent rating for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. In an unappealed decision dated July 2008, service connection for a back disability was denied. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a back disability. 3. Resolving reasonable doubt in the Veteran’s favor, the Veteran’s current back disability had its onset in service. 4. At the time of the assignment of a 50 percent evaluation for PTSD, the Veteran’s PTSD symptoms manifested in intrusive thoughts, flashbacks, angry outbursts, anxiety, depression, and mood swings; private and VA treatment records since then have failed to show severity of symptoms resulting in 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 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; difficulty in establishing and maintaining effective work and social relationships. CONCLUSIONS OF LAW 1. The criteria for whether new and material evidence has been received to reopen the claim of entitlement to service connection for a back disability has been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c). 3. The reduction in the evaluation for PTSD from 50 percent to 30 percent was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 2002 to January 2006. Service Connection 1. Whether new and material evidence was received to reopen the claim of entitlement to service connection for a back disability A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The Veteran’s back claim was originally denied in a July 2008 rating decision based on a finding that the Veteran’s diagnosis of lumbar strain had resolved. In a September 2010 rating decision, the RO declined to reopen the claim. The RO reopened the claim in an October 2014 statement of the case (SOC) but denied it on the merits based on a finding that the Veteran’s current back disability was not related to injury in service. Despite the determination reached by the RO with respect to the reopening of the Veteran’s claim, the Board must find new and material evidence to establish its jurisdiction to review the merits of previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Veterans Appeals (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Evidence submitted since the Veteran’s request to reopen includes January 2011 lay statements from the Veteran and his wife and an October 2014 VA examination report. The evidence is new in that it was not previously considered. It is also material insofar as it addresses the Veteran’s current back disability and whether it is related to service. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that the additional evidence is both new and material, and the claim for entitlement to service connection for a left knee disability is reopened. 2. Entitlement to service connection for a back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). For certain chronic disorders, such as arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The evidence has current diagnoses of scoliosis and mild degenerative disease. See October 2014 VA Examination Report. The issue that remains disputed is whether the Veteran’s current back condition had its onset in service, manifested to a compensable degree within one year of separation or is otherwise related to service. To this end, the evidence is conflicting. A May 2003 service treatment note shows the Veteran was seen for complaints of upper back pain. He reported that the pain began after a road march and had been dull. He reported that it became worse. He had full range of motion but reported sharp pain upon exercise and lifting. The diagnostic assessment was possible muscle strain. In April 2005 the Veteran was diagnosed with viral syndrome and complained of generalized pain including in the left lower back. Service treatment records are silent for further treatment for a lumbar spine condition. His November 2005 medical examination showed a normal spine. A March 2006 general VA examination indicates the Veteran had lumbar scoliosis with curvature to the left and no increased kyphosis or lordosis. Range of motion testing showed full range of motion with no discomfort or difficulty. In an October 2006 post deployment health reassessment, the Veteran denied back pain. The Veteran underwent a VA examination in July 2008. The examiner noted diagnoses of minimal dextroscoliosis and resolved lumbar strain but did not provide a medical opinion. The Veteran underwent an additional VA examination in October 2014. The examiner opined that the Veteran’s lumbar degenerative disc disease with mild scoliosis was less likely than not incurred in or related to complaints of upper and lower back pain in service. The examiner reasoned that the records show no history for a service-treated low back condition. Although complaints in May 2003 show possible muscle strain, almost three years later the Veteran finished service without any documentation of a back condition. The examiner also noted that the Veteran’s April 2005 reports of general back pain was part of the isolated episode of viral syndrome and was a self-limiting condition with no relationship to spine pathology. Finally, the examiner noted that the no documented evidence for continuity of care regarding a spine condition and the separation examination was silent for a back condition. The examiner failed to address the March 2006 diagnosis of scoliosis, which was diagnosed merely two months after separation. The Veteran’s October 2001 entrance examination showed a normal spine. In addition, the Veteran has continually asserted that his back pain had its onset in service and has continued since then. The Board finds the Veteran credible. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s lumbar spine condition had its onset in service. Service connection for a back condition is granted. 3. Whether the reduction of the evaluation for PTSD from 50 percent to 30 percent was proper. Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. PTSD is evaluated under VA’s General Rating Formula for Mental Disorders. Under the formula, a 30 percent rating is warranted when there is 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted 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 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability during the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation based on social impairment. 38 C.F.R. § 4.126(b). An October 2011 rating decision proposed to decrease the Veteran’s PTSD evaluation. A July 2012 rating decision decreased the Veteran’s PTSD evaluation from 50 percent to 30 percent. When reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation 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 his latest address of record of the contemplated action and furnished detailed reasons therefor. 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 addition, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344. In the present case, the 50 percent rating was in effect from December 12, 2007 to October 1, 2012 – less than 5 years. Regardless of whether the disability rating has been in effect for at least 5 years, the Board must not only determine “that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. Thus, it is well established that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that the service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. A June 2008 VA examination indicates that the Veteran reported anger and irritability. He reported feeling strange after returning from Afghanistan. He reported that his wife of six years had to leave him because he did not want to talk and wanted to be left alone. He reported that him and his wife went through counseling and are attempting to work things out. He reported that while in the National Guard he was not as upset or angry but still had problems with paranoia and vigilance. The Veteran denied psychiatric treatment. He reported little things set him off and cause him to be aggressive toward people. He reported buying a gun for security but later sold it. He reported trouble sleeping. He reported feeling down and depressed. He reported intrusive thoughts and flashbacks of traumatic events. He reported difficulty relating to people. He reported feeling paranoid and guarded. He reported that he was working at a night job delivering pizza on a part time basis. His previous job as a car salesman lasted 5 months. He indicated the job was too stressful and he had trouble getting up in the morning because of sleeplessness. On examination the Veteran was nervous and tense in his demeanor. He was verbally spontaneous but became quite emotional when describing traumatic events. He admitted feeling anxious and depressed. He denied suicidal ideations or intent. He reported intrusive thoughts and flashbacks, which are triggered by cues in the environment. He denied having nightmares. The examiner noted that the Veteran remains vigilant, continues to have problems with anxiety, depression, mood swings, intrusive thoughts and re-experiencing of trauma on a day to day basis. The examiner further noted that the severity of the Veteran’s condition has affected his ability to function at work and school. It also affected his relationship with his wife and his ability to maintain positive and effective relationships in a work setting. The Veteran was encouraged to seek psychotherapeutic intervention. The examiner noted that he was motivated but reluctant. The Veteran underwent an additional VA psychological evaluation in October 2011. The examiner noted that the Veteran did not meet criteria B for PTSD, however, he had a prior diagnosis of PTSD and is considered in remission for diagnostic purposes. The examiner indicated that the Veteran had 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 reported being married for 9 years and described his relationship as “pretty strong.” He reported they watch movies and go camping together. He indicated that life had been hectic lately as he had 3 jobs and is in school part time and his wife goes to school also. He reported having a two-year-old son that he enjoys spending time with. He reported that his brother, sisters, and parents all live in the area and he sees them 3 to 5 times a month. He also reported having friends in the area including a couple he describes as his best friends. Regarding employment, the Veteran reported working at his own mattress company, managing a text book distribution company, and doing some administrative work with the military. He reported receiving his Associates degree two semesters ago and indicated that his is pursuing a Bachelors in Business Administration. The Veteran reported that he does not participate in psychiatric counseling but sometimes talks to his family practice doctor. He indicated his family practice doctor stated that he needed psychotropic drugs. He was prescribed Adderall for anxiety and concentration. He reported that he was diagnosed with attention-deficit hyperactivity disorder. The examiner noted that his symptoms of focus and anxiety are consistent with symptoms of PTSD. Additional symptoms included the following: difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated started response, anxiety, suspiciousness, and mild memory loss. The Veteran was neatly groomed, and cooperative. He was awake, alert, oriented to person, place, time and situation. His mood presented as euthymic with congruent affect. His insight and judgment were grossly intact. While not formally tested, remote, recent memory and attention within normal limits. The Veteran denied suicidal or homicidal intent or planning, delusions, or hallucinations. Of record are also private treatment records from Magnolia Medical Clinic from 2011. The records show that the Veteran was prescribed Adderall and was diagnosed with attention deficit disorder. The Veteran’s wife indicated that the Veteran was a hard worker and good husband and father. She further reported “everyone likes him.” The private treatment records also show the Veteran was prescribe ritalin for depression. He reported feeling overwhelmed. He denied suicidal ideation. An April 2012 VA treatment note indicates the Veteran reported struggling with work. His local doctor prescribed him ritalin, which did not work but made him feel depressed. He was then placed on Adderall which was helpful to keep him alert, less fatigued, and able to manage working several jobs and attending school. He was referred to a local psychiatrist, seen once, and told his symptoms were more consistent with hypervigilance related to PTSD. He denied nightmares or recurrent memories and indicates he tries to keep it out of his mind. The Veteran did not endorse a history of depression or mania. The medical professional noted that although the Veteran is service connected for PTSD, he does not endorse any PTSD symptoms besides severe hypervigilance. During June 2012 psychiatric outpatient treatment, the Veteran reported he does not allow himself to think about his combat experience. He reported severe hypervigilance. He reported he continues in his endeavors to run his own businesses. He reported sleeping and average of 6 hours but indicated he sleep less on stimulant medication. He denied suicidal and homicidal ideation or plan. A September 2012 VA treatment note indicates the Veteran reported for a follow up for his psychiatric condition. He reported staying home with his 3-year-old son while his wife and other family members run the businesses. He reported taking two courses in school. He reported that he is not sleeping at all and that he is not tired in the daytime due to hypervigilance. The medical service provider noted crossover symptomatology of PTSD, mania, and ADHD. A February 2014 VA treatment record indicates the Veteran had no symptoms of depression or memory loss. The Veteran was noted to be euthymic. He had good judgment. His affect was appropriate and speech normal. He denied suicidal or homicidal ideation. An October 2014 VA treatment record indicates the Veteran reported he does not see a mental health treatment provider. The Veteran’s wife reported that the Veteran has trouble focusing but he drives, takes care of himself, makes his own appointments, and performs his own activities of daily living. Throughout the appeal period, the Veteran consistently reported that although he does not have nightmares or fear characteristic of PTSD he is always on alert. He endorsed extreme hypervigilance. He reported doing endless walk throughs and sweeps of his neighborhood. See August 2012 Correspondence; September 2012 NOD; and December 2014 VA Form 9. The Veteran’s 50 percent evaluation for PTSD was based on symptoms shown during the June 2008 VA examination including intrusive thoughts, flashbacks, angry outbursts, anxiety, depression, and mood swings. The Veteran reported an inability to function in a work or school setting. His symptoms also impacted his relationship with his wife. In the years since that examination, the October 2011 VA examination and VA and private treatment records show the Veteran continued to report severe hypervigilance and trouble sleeping. The Veteran also reported positive relationships with his family members and friends. He reported completing his associates degree and continuing to pursue a bachelors degree. He also reported several business endeavors. Overall, however, the records have failed to show severity of symptoms resulting in 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 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; difficulty in establishing and maintaining effective work and social relationships. While the Board is sympathetic to the impact the Veteran’s symptoms – specifically his severe hypervigilance – has on his life, the record shows that the Veteran’s disability has improved under the ordinary conditions of life and work, as is demonstrated in both the new examination report and the treatment records. Accordingly, restoration of a 50 percent rating for PTSD is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel