Citation Nr: 18153540 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 15-32 835 DATE: November 28, 2018 ORDER 1. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is denied. 2. Entitlement to a restoration of a 70 percent rating for anxiety disorder is denied. FINDINGS OF FACT 1. The Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. 2. A May 2013 rating decision reduced the disability rating for the Veteran’s service-connected anxiety disorder from 70 percent to 50 percent, effective August 1, 2013. 3. As of August 1, 2013, the 70 percent disability rating for the Veteran’s service-connected anxiety disorder had been in effect for less than five years. 4. Evidence at the time of the reduction demonstrated an overall improvement in the Veteran’s anxiety disorder and the disability picture more approximated the reduced rating of 50 percent. Evidence at the time of the reduction demonstrated that the improvement in the Veteran’s anxiety disorder reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for a reduction in a disability rating from 70 percent to 50 percent for anxiety disorder were met as of August 1, 2013. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.105(e), (i), 3.344, 4.130, Diagnostic Code (DC) 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2001 to October 2005 1. Entitlement to a TDIU rating A TDIU rating may be warranted when a Veteran demonstrates the inability to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. See 38 C.F.R. § 4.16(a). Minimum disability rating percentages must be shown for the service-connected disabilities, alone or in combination, to qualify for consideration for a TDIU award under § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability rendering a combined rating of 70 percent or more. Id. The question of unemployability or the veteran’s ability or inability to engage in substantial gainful activity, must be examined in a practical manner. The crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. Marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. The Board shall consider the nature of the employment and the reason for any termination. 38 C.F.R. § 4.16(a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19. The record must reflect some factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. The Veteran does meet the minimum disability rating percentage threshold for consideration of schedular a TDIU rating. 38 C.F.R. § 4.16(a). The Veteran is service connected for anxiety disorder, with a 50 percent rating; migraine headaches associated with anxiety disorder, with a 50 percent rating; gastroesophageal reflux disease (GERD), with a 10 percent rating; status post right foot peroneus brevis debridement and repair, with a noncompensable rating; and residual surgical scar, status post right foot peroneus brevis debridement and repair, with a noncompensable rating, for a combined 80 percent rating. Thus, the Veteran does have at least one disability rated at least 40 percent with an additional disability that creates a combined evaluation of at least 70 percent. According to the Veteran’s April 2012 VA Form 21-8940, he completed an Emergency Medical Technician Certificate in February 2005, had completed one year of college, and at the time of the application was currently enrolled in the College of Western Idaho. Although the Veteran stated in previous applications completed in December 2010 and March 2011 that he had previously earned an annual salary of approximately 40,000 dollars, in 2004 and 2005. In the April 2012 application, he stated that the most he had ever earned was 31,000 dollars in one year, in 2009. In his December 2013 application, the Veteran stated that the most he had ever earned was 32,000 dollars in one year, in 2010. The Veteran indicated that he is too disabled to work because of his service-connected anxiety disorder and service-connected migraine headaches. In the August 2014 VA examination for headaches, the examiner opined that the Veteran’s service-connected migraine headaches impacted his ability to work because, in the examiner’s opinion two or three disabling headaches per month would be expected to significantly interfere with occupational function in the sense that the Veteran would miss work at an unacceptable rate for most employers in a competitive workforce. However, the Board finds that the examiner is not competent to provide an opinion on how much missed work would be acceptable for most employers in a competitive workplace, and assigns this part of the opinion no probative value. In a September 2013 ruling, the Social Security Administration (SSA) assessed that the Veteran had the residual functional capacity to perform light work, including climbing ramps, stairs, ladders, ropes, and scaffolds. SSA assessed that the Veteran could frequently kneel, crouch, crawl, and could perform unskilled work in a low stress setting, and would be required to miss two to three days of work due to his anxiety and/or migraines. Regardless, SSA awarded disability benefits based on a finding that there were no jobs available in sufficient numbers in the national economy that the Veteran could perform. However, decisions of the SSA regarding disability, while relevant, are not controlling with respect to VA determinations, particularly as adjudication of VA and Social Security claims are based on different laws and regulations. In the December 2012 general VA examination, the Veteran stated that neither his scars nor his GERD affect his ability to work. He says the only thing the ankle affects is his ability to run, so he would have a hard time being a policeman or border patrol agent. In the November 2012 VA examination for mental disorders, the examiner opined that Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected generalized anxiety disorder. The examiner cited the fact that the Veteran is raising his children, the Veteran’s own assessment of his future, and therapeutic options available to the Veteran. In a May 2013 statement, the Veteran stated that he attempted to start his own business, but was not successful due to his anxiety. The Board has considered the opinions of the medical professionals; however, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See 38 C.F.R. § 4.16(a). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. An October 2010 record demonstrates that the Veteran was terminated from his first job due to excessive tardiness and unapproved absences from the workplace. Other records from January 2011 demonstrate that the Veteran failed to perform his job duties adequately and again demonstrated leave issues, ultimately leading to his termination from his second job in February 2011. These records do not support that the Veteran was unable to follow these occupations due to his service-connected disabilities, and instead attribute his job terminations due to other factors. Although the August 2014 VA examiner found that the Veteran’s headaches would impact his work, causing him to miss two to three days of work per month, the Board finds that this does not constitute a factor that takes the case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15. A July 2014 VA treatment record shows that the Veteran continues to be enrolled in school. Although the Veteran is taking one course only, the fact that he has been taking college level classes for several years, weighs in favor of a finding that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. Remaining VA treatment records do not support a finding that the Veteran is not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. The record ultimately reflects the Veteran is capable of physical and sedentary employment, subject to limitations that are not outside the bounds of those adequately contemplated by schedular criteria. In light of the foregoing, the Board finds the evidence to preponderate against a claim for a TDIU rating. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 2. Entitlement to a restoration of a 70 percent rating for anxiety disorder 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 decision 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 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). Here, in a January 2013 rating decision, it was proposed to reduce the 70 percent rating for the Veteran’s anxiety disorder to a 50 percent rating. The Veteran was notified of this proposal in a February 2013 letter. In a May 2013 rating decision, the Veteran was assigned a 50 percent rating for his anxiety disorder, effective August 1, 2013. As such, the requirements of 38 C.F.R. § 3.105(e) have been fulfilled. In addition, the provisions of 38 C.F.R. § 3.344 provide that rating agencies will handle cases affected by any change of medical findings or diagnosis, in order 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 on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. In any rating-reduction case, 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 the veteran’s life. 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 for five years or more and that they 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, where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). A rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155. Moreover, for ratings that have been in effect for five years or more, reduction is warranted only when reexamination discloses sustained and material improvement that will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). Examinations thus usually are the comparison point for determining whether there has been improvement. Those examinations forming the basis for a reduction must be adequate, certainly as comprehensive as the examination on which the existing rating was based. Furthermore, VA must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a)-(b). 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. However, post-reduction evidence may not be used to justify an improper reduction. The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. The Veteran seeks restoration of the 70 percent rating for anxiety disorder that had been assigned prior to August 1, 2013. The rating in question was in effect from April 2, 2012 to August 1, 2013, a period of less than five years. Reexaminations disclosing improvement, physical or mental, in service-connected disabilities will warrant a reduction in rating where the disability rating has continued at the same level for less than five years. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, as is the case here, the analysis is conducted under 38 C.F.R. § 3.344(c). In this case, two findings are necessary in order for the reduction to be proper: (1) that an improvement in the Veteran’s anxiety disorder has actually occurred; and, (2) that improvement reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Veteran’s anxiety disorder is rated under DC 9400. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings (in relevant part) for psychiatric disabilities, including adjustment disorders: A 50 percent disability 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 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9400. Under the formula, a 70 percent rating is warranted where there is 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 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 inability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. In a February 2006 rating decision, the Veteran was granted service connection for anxiety disorder, and a 10 percent rating was assigned effective October 15, 2005. In a May 2010 rating decision, a 50 percent rating was assigned effective May 19, 2009. Rating decisions in June 2010 and October 2010 continued the 50 percent rating decision. In a May 2012 rating decision, a 70 percent rating decision was assigned, effective April 2, 2012. The 70 percent rating was assigned based on findings in a May 2012 VA examination report. According to the May 2012 VA examination, the Veteran’s anxiety disorder was manifested by difficulty in adapting to stressful circumstances, obsessional rituals which interfere with routine activities, suicidal ideation, occupational and social impairment with reduced reliability and productivity, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, flattened affect, panic attacks more than once a week, anxiety, chronic sleep impairment, depressed mood, and mild memory loss. In a January 2013 rating decision, it was proposed to reduce the 70 percent rating for the Veteran’s anxiety disorder to a 50 percent rating. In a May 2013 rating decision, the Veteran was assigned a 50 percent rating for his anxiety disorder, effective August 1, 2013. The 50 percent rating was based upon findings in a November 2012 VA examination report, where the Veteran specifically denied any experiencing any suicidal intent, was no longer found to have symptoms of obsessional rituals which interfere with routine activities, and no longer experienced mild memory loss. The examination report noted that although the Veteran was experiencing difficulty in school, he maintained responsibility for his two sons the 70 percent of the time. After a careful review of the evidence of record, the Board finds that the reduction was proper and that restoration of the 70 percent rating for anxiety disorder is not warranted. The reasons for this determination follow. The Board finds that the November 2012 examination was thorough, fully adequate, and complete, and was at least as thorough, fully adequate, and complete as the May 2012 examination upon which the 70 percent rating was originally assigned for the Veteran’s anxiety disorder. For example, both examinations noted presence or absence of the Veteran’s psychiatric symptoms using the same exact checklist in both VA examinations; both examinations noted behavioral observations in relation to the Veteran; and both examinations noted the Veteran’s educational, occupational, social, and mental health history. The Board finds that the November 2012 examination shows actual improvement in the Veteran’s anxiety disorder. The record shows that the Veteran warranted the 70 percent disability rating at the time it was granted in the May 2012 rating decision. However, the evidence also shows that his anxiety disorder significantly improved by the time of his November 2012 VA examination. For example, during the November 2012 VA examination, the Veteran specifically denied suicidal ideation, no longer experienced memory loss, and no longer engaged in obsessional rituals which interfered with routine activities. These changes in symptoms, coupled with the fact that the Veteran was able to successfully care for his children, weighs against a finding of occupational and social impairment, with deficiencies in most areas, which is the criteria for a 70 percent rating under DC 9400. Accordingly, the Board finds that material improvement in the Veteran’s anxiety disorder occurred. The Board notes that the improvement in the Veteran’s anxiety disorder also reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The January 2013 rating decision noted that after the results of the November 2012 VA examination, the Veteran no longer met any of the symptoms necessary for a 70 percent rating under DC 9400. As mentioned above, the November 2012 VA examination noted that the Veteran no longer was experiencing suicidal intent, was caring for his children, and was otherwise experiencing decreased psychiatric symptoms. These facts support a finding that the improvement in the Veteran’s anxiety disorder reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. As mentioned above, post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated. VA treatment records from December 2012, June 2013, and June 2014 demonstrate that the Veteran continued to deny suicidal or homicidal ideation. A December 2014 VA treatment record shows that the VA treatment providers continued to note appropriate behavioral observations, including in terms of appearance, behavior, eye contact, speech, language, mood, affect, thought processes, insight and judgement. As the Veteran’s symptoms and improvement remained constant for more than two years following the November 2012 VA examination, the Board finds that the preponderance of the evidence reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Although the Veteran is competent to state that his symptoms have not improved, and his statements are credible, the Veteran’s contentions are outweighed by objective medical evidence. Based on this evidentiary posture, the Board finds that the reduction in the Veteran’s rating for his anxiety disorder from 70 percent to 50 percent effective August 1, 2013, was proper. Therefore, the Board finds that the preponderance of the evidence is against the claim and restoration of the 70 percent rating for anxiety disorder is not warranted. 38 U.S.C. § 5107(b). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Husain, Associate Counsel