Citation Nr: 18155460 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-38 795 DATE: December 4, 2018 ORDER As the reduction in the disability rating from 50 percent to 30 percent for the Veteran’s service-connected posttraumatic stress disorder (PTSD) was not proper, restoration of the 50 percent disability rating is granted. REMANDED Entitlement to a disability rating in excess of 50 percent for service-connected PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT The decision to reduce the Veteran’s service-connected PTSD from 50 percent to 30 percent, effective November 1, 2015, was not proper, as the Agency of Original Jurisdiction (AOJ) failed to consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. CONCLUSIONS OF LAW As the AOJ’s reduction of the disability rating for the Veteran’s service-connected PTSD from 50 percent to 30 percent, effective November 1, 2015, was not in accordance with law, the criteria for restoration of the 50 percent rating are met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.105(e), 3.159, 4.3, 4.7, 4.14, 4.124a, DC 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1970 to January 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, and an August 2015 rating decision of the VA RO in Janesville, Wisconsin. Regarding the issue of the propriety of the reduction of the Veteran’s disability rating for PTSD, the Board notes that this matter does not necessarily include a claim for an increased rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (explaining that the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). In this case, however, the reduction actually stems from the Veteran’s application for an increased rating as well as an application for entitlement to TDIU. Accordingly, the Board has characterized the appeal as also involving an increased rating claim in addition to the issue of whether the reduction was proper. While the Board is adjudicating the issue of the propriety of the reduction of the Veteran’s rating for PTSD, the issue regarding an increased rating is being remanded to seek additional evidence. 1. Restoration of the 50 percent rating for PTSD Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then-current severity of the disorder. The Court also discussed the concept of the ‘staging’ of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In a March 2012 rating decision, the Veteran was granted service connection for an anxiety disorder not otherwise specified with alcohol dependence evaluated as 50 percent disabling, effective September 15, 2010. This was based on the results from a March 2011 VA examination that revealed the Veteran experienced impaired abstract thinking, anxiety, chronic sleep impairment, mild memory loss, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In November 2014, the Veteran requested an increased disability rating for his anxiety disorder. A VA examination was performed in April 2015, which indicated that the Veteran had PTSD. The examiner found that the Veteran experienced difficulty establishing and maintaining effective work and social relationships, chronic sleep impairment, anxiety, suspiciousness, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Following this examination, the AOJ instead proposed reducing the Veteran’s disability rating for his anxiety disorder (now recharacterized as PTSD with alcohol abuse) from 50 percent to 30 percent in an April 2015 rating decision. In August 2015, the AOJ reduced the Veteran’s PTSD disability rating from 50 percent to 30 percent, effective November 1, 2015. This was based on the results of the April 2015 VA examination. A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. §1155. 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, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). 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. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Upon review of the evidence, the Board finds that the reduction in the rating from 50 percent to 30 percent for the Veteran’s service-connected PTSD under DC 9411 was not proper, and restoration of the 50 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed the evidence of record, which indicated that the Veteran’s service-connected PTSD no longer met the criteria for a 50 percent rating under DC 9411. However, review of the April 2015 rating decision, the August 2015 rating decision, and the July 2016 Statement of the Case reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life. See 38 C.F.R. §§ 4.10, 4.13. The AOJ’s failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Here, the AOJ failed to consider whether any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. Accordingly, the 50 percent rating assigned for a PTSD under DC 9411 is restored. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 50 percent for service-connected PTSD is remanded. The Board notes that the Veteran filed his claim for an increased disability rating for his service-connected anxiety disorder (now characterized as PTSD) in November 2014. While VA treatment records were associated with the file in connection to his claim, very little evidence has been added to the record since July 2016. Notably, the most recent CAPRI VA treatment records indicate that the Veteran was receiving treatment for PTSD as of June 2016. The Board will remand to instruct the AOJ to inquire as to the availability of these records, as well as to schedule the Veteran for a new VA examination to determine the severity of his PTSD at this time. 2. Entitlement to TDIU The Veteran filed his claim for TDIU in November 2014. However, the adjudication of the issue of a higher disability rating for the Veteran’s service-connected PTSD could significantly change the adjudication of TDIU, especially in light of the new VA examination pending. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Consideration of the issue of a TDIU, therefore, will be deferred until the intertwined issue regarding the Veteran’s PTSD is resolved. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The Board will therefore revisit this issue after the disposition of the Veteran’s claims noted above. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from July 2016 to the present. 2. Then, afford the Veteran a mental health examination to determine the current severity of his PTSD. The examiner is specifically asked to form an opinion regarding the extent to which this condition affects the Veteran’s ability to obtain and maintain substantially gainful employment since 1990. The examiner is reminded that the Veteran is service-connected for his alcohol abuse as part of his PTSD disability. 3. Thereafter, readjudicate the claim, to include consideration of entitlement to TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel