Citation Nr: 18155449 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-22 460 DATE: December 4, 2018 ORDER Restoration of a 70 percent rating for post-traumatic stress disorder (PTSD) from May 1, 2014 is denied. Restoration of a total disability rating due to individual unemployability (TDIU), severed effective May 1, 2014, is denied. FINDINGS OF FACT 1. At the time of the February 2014 rating decision that effectuated the reduction from 70 to 50 percent for PTSD, the applicable notice procedures were followed and the evidence considered made it reasonably certain that the improvement shown would be maintained under the ordinary conditions of life; the Veteran’s symptoms did not more nearly reflect occupational and social impairment with reduced reliability and productivity in most areas at the time of the reduction. 2. At the time of the February 2014 rating decision that effectuated the severance of TDIU effective May 1, 2014, there was clear and convincing evidence that the Veteran was employable. CONCLUSIONS OF LAW 1. The criteria for restoration of a 70 percent rating for PTSD from May 1, 2014, are not met. 38 U.S.C. §§ 1155, 5107, 5117; 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 9411. 2. The criteria for restoration of the award of TDIU, severed effective from May 1, 2014, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. This case comes before the Board of Veteran’s Appeals (Board) on appeal of a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to restoration of a 70 percent rating for PTSD from May 1, 2014. The Veteran’s 70 percent disability evaluation for PTSD was awarded effective February 28, 2008, and was reduced effective May 1, 2014, more than 5 years later. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Veteran contends that restoration of the 70 percent rating for PTSD is warranted because his symptoms had actually worsened and, therefore, the RO’s reduction was improper. The Board concludes that the preponderance of the evidence is against restoration of a 70 percent rating for PTSD from May 1, 2014 as the applicable notice procedures for rating reductions were followed and the evidence clearly warrants the conclusion that there is sustained improvement reasonably certain to be maintained under the ordinary conditions of life. 38 C.F.R. §§ 3.105(e), 3.344. As to procedural matters, the RO notified of the Veteran of the proposed reduction in a November 9, 2012 letter. VA received a request for a personal hearing from the Veteran’s representative on November 23, 2012. An RO hearing was held on August 27, 2013. In a February 11, 2014 rating decision, the RO effectuated the proposed reduction from 70 to 50 percent for PTSD. Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Final rating action will reduce or discontinue the compensation effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the procedural requires of 38 C.F.R. § 3.105(e) were met. There is no contention otherwise. As to substantive matter, the applicable law is set out at 38 C.F.R. § 3.344(a) and (b) given that the Veteran’s disability rating was in effect for 5 or more years. Under Section 3.344, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished only when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Additionally, reductions may not be predicated on less full and complete than those in which payments were authorized or continued; or on any one examination for diseased subject to episodic/intermittent improvement except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated; or where material improvement, although clearly reflected, the evidence does not makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Faust v. West, 13 Vet. App. 342, 349 (2000); Brown, 5 Vet. App. at 421. In these types of cases, VA must establish, by a preponderance of evidence, that the rating reduction was warranted based upon review of the entire history of the disability. Brown (Kevin) v. Brown, 5 Vet. App. 413, 421 (1993); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995); see also 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO when the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran’s PTSD rating was increased to 70 percent in an October 2008 rating decision. See Rating Decision (October 2008). An April 2008 VA examiner opined that the Veteran’s symptoms resulted in deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. See VA Examination (April 2008). The examiner explained the Veteran’s issues centered primarily around his frequent irritability and outbursts of anger, difficulty falling or staying asleep, and a chronic restricted range of affect which caused marital problems and distanced him from his children. The Veteran took medication to help manage his symptoms. He reported having a handful of friends he saw at least twice per week and he routinely bowled and fished. VA treatment records from April 2008 to August 2008 note continued irritability and verbal outbursts, sleep totaling 5 hours a night, and poor insight and judgement. See Medical Treatment Record (MTR) (October 2008). However, the Veteran’s practitioner noted improvement in his symptoms. Improvement was also noted at a November 2009 VA examination. See VA Examination (November 2009). The Veteran reported getting 7 hours of sleep at night with struggles related to his former third shift schedule, irritation a couple times a week with 2 hours cooling off time, avoidance of loud noises and crowds, and intrusive thoughts and flashbacks. Noting the Veteran was previously deemed unemployable due to problems with his temper and sleep, the examiner opined that mild PTSD symptoms caused some distress but overall psychosocial functioning was good. Though improvement had been shown, the 70 percent rating was continued as sustained improvement had not been definitively established under 38 C.F.R. § 3.344. See Rating Decision (November 2009). VA treatment records to April 2012 show continued improvement with reduction in anger and irritability, application of coping strategies (man cave), implementation of positive boundaries, and processing of trauma-related memories. See MTR (November 2009) and CAPRI (May 2012). The Veteran effectively managed stresses related to caring for his ill wife and finances. The Veteran’s occupational and social impairment due to his PTSD symptoms were again characterized as mild by an August 2012 VA examiner. The examiner completed an extensive social history for the Veteran and included a detailed summary of his medical history since the last VA examination. Symptoms related to the Veteran’s diagnosis were anxiety and chronic sleep impairment. The examiner opined that the Veteran’s symptoms “appear to be mild at this time and have not increased since his last C&P exam in 2009.” Based on the results of this examination, a reduction in the Veteran’s rating was proposed. The Veteran’s spouse reported that his symptoms had increased rather than decreased since 2008 as evidenced by irritability, anger, criticism of others, and the increased time he spent in his garage (man cave). See VA 21-4138 (November 2012). The Veteran stated that he is only able to sustain some semblance of normalcy because he can isolate himself as needed. See VA 21-4138 (November 2012). He noted that his participation on the bowling team since 1969 is in part a memorial to his dead Vietnam buddies. The Veteran stated that, though he does attend “SOME” of the activities his grandchildren invite him to, he sits or stands in back and leaves as soon as they end. The Veteran asserts that he is only able maintain because he does not have to put up with the conditions of life such as working, looking for work, or being around people. Medical treatment records from January 2013 to July 2013 reflect continued progress in controlling PTSD symptoms and setting boundaries, improvement in relationship with his spouse, and continued struggles hypervigilance, irritability, and nightmares at times. See MTR (July 2013). At an August 2013 DRO hearing, the Veteran’s spouse testified that he did not interact with her or the kids at times. He sometimes invited his friends over to his man cave where he isolates himself. He had been friends with one gentleman since age three and the others for roughly 40 years. He did not do well in public except at the horse track but still had problems there occasionally. The Veteran could not be around loud noises and was sometimes belligerent. The Veteran reported that he disliked structure and coped with his PTSD symptoms by going to the horse track, spending time in his man cave, and drinking beer. The Veteran reported that he went to family outings to “keep the peace” and had discontinued counseling because he got “pissed off.” He had once left his group of friends at the race track for the same reason. The Veteran reported that none of his symptoms had improved. The Veteran’s statements made in connection to his claim for compensation benefits are contradicted by his own statements made in pursuit of medical care. The Veteran’s statements to medical professionals document increased control of his temper, fewer outbursts, increased sleep, and improvement in his mood and relationships. The Board finds the statements made to medical providers more persuasive than statements made in pursuit of monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent disability rating is awarded when 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 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 relationship. Id. The Veteran continues to have bouts of impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective familial relationships. However, he has maintained 40-year and lifelong friendships. The record shows he controls his impulses for the most part and can function independently, appropriately, and effectively as evidenced by his role as caretaker for his ill wife. The evidence reflects an actual change in the disability, and examination reports reflecting such change are based on thorough and adequate examinations. Faust v. West, 13 Vet. App. 342, 349 (2000). The remaining question before the Board is whether the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. The Veteran retired in 1999 after 30 years at General Motor. He actively works on projects in his man cave and picks up items to sell at rummage sales. He is care-taker to his wife who has had significant medical issues. An October 2015 psych note indicated that the Veteran felt increased depression with suicidal ideation and plan but not intent. See MTR, p. 111 (June 2017). However, the Veteran denied both suicidal ideation and intent on follow-up. Treatment notes document that, despite continued life stressors, the Veteran’s affect brightened and improvement continued. The historical record clearly shows actual improvement in the effect of the Veteran’s PTSD symptoms on his relationships, judgement, thinking, and mood. The Veteran’s representative argues that situational symptoms (death of the Veteran’s son-in-law, financial stress due to spouse’s gambling, belligerence about an unexpected expense) reflect that no material improvement has occurred. However, these are conditions of ordinary life, and treatment records show the Veteran processed and adapted to these conditions and continued exhibiting improvement through treatment. The overall record shows sustained improvement. The evidence demonstrates improvement and that the Veteran did not more nearly meet the criteria for a 70 percent rating at the time of the reduction from 70 to 50 percent. Hence, the Board finds the restoration of the 50 percent rating is not warranted. Accordingly, the claim for restoration of a 70 percent rating is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to restoration of TDIU, severed effective May 1, 2014. The Veteran reported that he was fired from his part-time job of four years due to an inability to control his anger and his symptoms have not improved to an extent that would allow employment. The contends that restoration of his 100 percent TDIU rating is warranted. The Board concludes that restoration of TDIU is not warranted as there is clear and convincing evidence that the Veteran was employable at the time of the severance effective May 1, 2014. Under 38 C.F.R. § 3.343(c)(1), the reduction of a rating of 100 percent service-connected disability based on individual unemployability must be based on a determination that actual employability is established by clear and convincing evidence. The “clear and convincing” standard requires that capacity for work be proven to a “reasonable certainty” but not necessarily be “undebatable.” The clear and convincing standard of proof is an intermediate standard between preponderance of the evidence and beyond a reasonable doubt. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not advancing age. For the purpose of the reduction of a TDIU rating, actual employment is not synonymous with actual employability. A finding of “actual employability” under 38 C.F.R. § 3.343 (c)(1) must encompass a finding that the Veteran is no longer unemployable-that is, is no longer “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” under 38 C.F.R. § 4.16(a). A high disability rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. However, the question in a total rating case based upon individual unemployability due to service-connected disabilities is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. In assessing the propriety of the RO’s decision to discontinue the total disability based on individual unemployability the Board must focus on the evidence of record available to the RO at the time the rating determination at issue was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether actual improvement (or, as here, employability) was shown. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Board has considered the lay and medical evidence, discussed in detail above. The Veteran has past work experience in a factory. He reports that he cannot work due to his PTSD and, in particular, due to difficulties being around people and a desire to isolate, which he and his spouse discussed at his August 2013 hearing. However, the VA treatment records discussed above shows clearly and convincingly that he can perform both the physical and mental acts required for employment. To the extent that the lay statements and testimony in connection with this appeal reflect otherwise, the Board finds that the evidence has diminished probative value as it is incongruous with reports given to examiners during medical treatment and evaluation. Notably, the evidence shows that the Veteran no longer displayed the frequent episodes of anger and irritability which had previously interfered with his employability. He is further shown to be able to work on projects in his garage and sell items at rummage sales, demonstrating physical and mental skills used in employment. This is consistent with August 2012 VA examination findings for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner characterized the disability, with symptoms of anxiety and chronic sleep impairment, as mild. August 2012 VA diabetes examination shows that he condition is managed by diet restriction and that regulation of activities was not required. There was no peripheral nerve involvement. The examiner noted that there was no functional impact on the Veteran’s ability to work. Similarly, diabetic nephropathy had no functional impact on the Veteran’s ability to work. The Veteran does not contend nor does the record show that the hearing impairment or residuals of malaria preclude his ability to perform the mental and/or physical acts required for employment. To terminate TDIU, the “clear and convincing” standard requires that capacity for work be proven to a “reasonable certainty” but not necessarily be “undebatable.” Vanerson v. West, 12 Vet. App. 254, 258 (1999). In this case, that standard was met. Accordingly, the claim for restoration of TDIU, severed effective May 1, 2014 is denied. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel