Citation Nr: 18155833 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16 29-520 DATE: December 6, 2018 ORDER Entitlement to service connection for a skin condition is denied. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is denied. The rating reduction from 70 percent to 50 percent for posttraumatic stress disorder (PTSD), effective July 1, 2014, was improper, and the 70 percent rating is restored. FINDINGS OF FACT 1. There is no competent and credible evidence establishing that the Veteran currently suffers from a skin condition. 2. There is no competent and credible evidence establishing that the Veteran currently suffers from peripheral neuropathy of the bilateral lower extremities. 3. In a June 2013, rating decision, the RO informed the Veteran that his 70 percent evaluation for PTSD was proposed to be reduced to a 50 percent rating. 4. In an April 2014, decision, the RO reduced the rating for the Veteran’s PTSD from 70 percent disabling to 50 percent disabling, effective July 1, 2014. 5. The 70 percent rating had been in effect since August 23, 2010, which was less than five years. 6. At the time of the April 2014, rating decision, improvement of the Veteran’s PTSD that reflected an improvement in his ability to function under the ordinary conditions of life was not demonstrated. CONCLUSIONS OF LAWS 1. The criteria for establishing service connection for a skin condition have not been met. 38 U.S.C.§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C.§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The reduction of the rating for PTSD from 70 percent to 50 percent effective July 1, 2014, was improper, and the 70 percent rating is restored. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, 4.85, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from November 1970 to July 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from April 2014, and June 2015, rating decisions of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO). Service Connection 1. Entitlement to service connection for a skin condition 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities Service treatment records are negative for any reports of a skin condition or peripheral neuropathy of the bilateral lower extremities. VAMC records are negative for any complaints of a skin condition or peripheral neuropathy of the bilateral lower extremities. The Veteran underwent an examination in May 2015. The Veteran was not found to have a skin condition. The Veteran reported a history of a rash, stating he had been exposed to something while in service. He reported seeking treatment, but was never diagnosed with a condition. On examination, the Veteran’s skin was intact, with no evidence of a skin condition. VA treatment records document podiatry visits, with no evidence of neuropathy. At a July 2010 visit, the Veteran had a normal bilateral lower extremity neurological evaluation. Again, in September 2014, April 2015, and May 2016, on examination the Veteran’s lower extremities were found to be normal neurologically. To date the Veteran has submitted no evidence of a skin condition or bilateral lower extremity peripheral neuropathy. Although the Veteran is competent to describe his symptoms, it is now well established that lay persons without medical training, such as the Veteran, are not competent to opine on matters requiring medical expertise, such as the diagnosis of a skin condition or bilateral lower extremity peripheral neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical testing and expertise is required to determine the diagnosis of symptoms arising from a skin condition or peripheral neuropathy, as well as to determine the etiology of any such condition. The Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis or etiology of his claimed skin condition, or peripheral neuropathy. In any event, the Board concludes that the medical evidence, which reveals no findings of a skin condition or peripheral neuropathy during the appeal period is of greater probative value than the Veteran’s contentions. VA records show the Veteran’s contacts with health professionals have been numerous, during which time no diagnosis or treatment for a skin condition or peripheral neuropathy is shown. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See U.S.C §1110. In the absence of proof of a present disability, there can be no valid claim. Although there is medical evidence of record dating from over 20 years ago to the present, the preponderance of the competent evidence of records shows no findings of a skin condition present or peripheral neuropathy of the bilateral lower extremities during the appeal period. Accordingly, in the absence of competent and credible evidence of a skin condition or bilateral lower extremity neuropathy, during the period of the claim, service connection is not warranted on any basis and the claims must be denied. 3. Propriety of a rating reduction of 70 percent to 50 percent for posttraumatic stress disorder With respect to rating reductions, there are specific notice requirements, found in 38 C.F.R. § 3.105(e)-(i), which are applicable to reductions in ratings. 38 C.F.R. § 3.105(e) sets forth procedural requirements for reductions in disability compensation ratings. When a reduction is anticipated, the beneficiary must be notified of the proposed reduction, with notice of the reasons for the proposed reduction. Further, the beneficiary must be allowed a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. After the allotted period, if no additional evidence has been submitted, final rating action will be taken and the rating will be reduced or discontinued 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 expires. The requirements under 38 C.F.R. § 3.105(e) for reduction of the schedular disability rating from 70 percent to 50 percent for the Veteran’s service-connected PTSD were properly carried out by the RO. In February 2012, the RO granted the Veteran service connection for PTSD with a 70 percent rating, effective August 23, 2010. Under the applicable rating criteria, a 50-percent rating will be assigned for PTSD where the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: a 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70-percent rating applies when a veteran’s occupational and social impairment reflects 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or an inability to establish and maintain effective relationships. Id. A 100-percent rating is assigned when there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Turning to the evidence of record, the February 2012 rating was based on a November 2011 VA examination. At the November 2011, examination the Veteran was diagnosed with PTSD, panic disorder, and depressive disorder. He was found to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was unemployed, having last worked in 2003. He was taking trazadone and citalopram. In June 2013, the RO proposed to reduce the evaluation for the Veteran’s PTSD from 70 to 50 percent. In an April 2014, rating decision, the RO reduced the disability evaluation from 70 percent to 50 percent, effective July 1, 2014. The Veteran maintains that his 70 percent rating should not have been reduced. The Veteran was sent a notice letter of the proposed reduction dated June 2013. Such communication fully detailed the proposal to reduce his disability evaluation and apprised him that he had 60 days to submit additional evidence to show that a reduction was not appropriate. Evidence was submitted and considered, and the reduction was implemented in an April 2014, rating decision, effective July 1, 2014. Given the chronology of the process described above, the Board finds that the RO complied with the due process procedures required under 38 C.F.R. § 3.105(e) for reducing the Veteran’s disability rating by notifying him of his rights and giving him an opportunity for a hearing and time to respond. The Board must next address whether the reduction was warranted. A Veteran’s disability rating may not be reduced unless the evidence demonstrates that an improvement in the disability has occurred. See 38 U.S.C. § 1155. Additionally, in certain rating reduction cases, the recipients of VA benefits are to be afforded greater protections. These additional protections apply in cases involving ratings that have continued for long periods of time at the same level (that is, five years or more); for ratings in effect for fewer than five years, reduction is warranted if the evidence shows improvement of the condition. See 38 C.F.R. § 3.344 (2017). In this case, the 70 percent evaluation for PTSD was assigned based on November 2011, examination results. The Veteran’s 70 percent evaluation was in effect for less than five years. As noted above, additional procedural safeguards are set forth in 38 C.F.R. § 3.344 for ratings in effect for five years or more. These protections are not for application in this case as the Veteran’s 70 percent rating was in effect for less than five years. However, in Brown v. Brown, 5 Vet. App. 413, 421(1993), the Court identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, as mentioned, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). In August 2012, the Veteran underwent a VA examination. The Veteran was not diagnosed with any other mental disorder. He was found to have 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. On examination, he was cooperative and attentive toward the interview. He had no psychomotor agitation or retardation, and there was no abnormal motor movement. He was anxious, and his mood was depressed. His thought processes were coherent, relevant, logical and goal directed. There was no evidence of delusional ideas or hallucinations. In June 2013, an addendum was rendered. The examiner concluded the Veteran had no social or occupational impairments based solely on what began as mild PTSD. The examiner noted, the Veteran’s worries and ruminations are not PTSD-based. The functional impairment was mostly cognitive in that the Veteran thinks he cannot work or should not work, as he was told. His confidence and self-esteem both suffered because he was not working. In October 2016, the Veteran underwent an examination, and was found to have 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. He had not pursued any occupational and or educational endeavors since his previous exam. He described difficulty relating to civilians, but alluded to having a good report with others in the community. The Veteran was receiving treatment at the VAMC. He reported suicidal ideation on occasion. On examination his thought progression was tangential at times, though he was easily redirected. He denied cognitive or perceptual distortions. The Veteran maintained that his PTSD never improved. In a May 2014, he stated he never felt he would feel better if he worked. He reported the last time he held a job was in 2004, at which time he became ill several times during employment. He lost his job at that time, and had not been able to find employment since. He was fearful that if employed he would become sick. In an April 2017, statement from Mr. R. M., Mr. M noted he and the Veteran had been acquainted for many years. He stated he had witnessed the Veteran’s struggles through the years. He noted the Veteran is constantly on guard, suffers from high anxiety, depression, and avoids crowds. He has memory and concentration problems. He indicated that due to the Veteran’s memory and concentration problems, it was difficult to have a conversation with him, as he would frequently stare at the wall. He stated the Veteran is very isolated, with few, if any, close relationships. The evidence indicates that the Veteran’s PTSD symptoms did not reflect improvement in ability to function under ordinary conditions of life and work. He and Mr. M., have submitted statements indicating he continues to suffer from severe PTSD symptoms, and has difficulty maintaining relationships, and any sort of employment as a result. Additionally, VAMC treatment records document continued treatment for PTSD. Furthermore, the June 2013 addendum that indicates the Veteran’s ruminations are not PTSD related, however, the clinician provided no indication as to what his ruminations and worries are based on. Further, the 2012 examiner found the Veteran did not suffer from any additional psychiatric conditions. The Board concludes that, at that the time of the reduction, the evidence did not show actual, ascertainable improvement of the Veteran’s PTSD, which actually reflected an improvement in his ability to function under the ordinary conditions of life and work. This conclusion is supported by the Veteran’s lay statements that his PTSD had not improved, and Mr. M’s statement supporting the Veteran’s contentions as to the severity of his PTSD. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the reduction of the rating for PTSD was not proper because any improvement that occurred did not reflect improvement in the ability to function in the ordinary course of life. As such, the 70 percent rating for PTSD is restored effective July 1, 2014, the date of the reduction. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel