Citation Nr: 18157875 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-58 567A DATE: December 13, 2018 ORDER Restoration of a 70 percent disability rating for posttraumatic stress disorder (PTSD) to include major depressive disorder, panic disorder without agoraphobia, and history of alcohol abuse is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The reduction in the disability rating from 70 percent to 50 percent was not based on improvement in the Veteran’s ability to function under the ordinary conditions of life. CONCLUSION OF LAW The reduction in the disability rating from 70 percent to 50 percent was not proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105 (e), 3.344 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to November 1991. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO reduced the disability rating for PTSD to include major depressive disorder, panic disorder without agoraphobia, and history of alcohol abuse from 70 percent to 50 percent, effective February 1, 2014. In March 2014, the Veteran disagreed with the RO’s determination. The Veteran died in December 2014. The appellant is his surviving spouse and has been substituted for purposes of this appeal. 1. Rating Reduction With regard to restoration, there is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). In Brown v. Brown, 5 Vet. App. 413 (1993), the Court interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, based upon a 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. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that 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 in a disability has 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. 38 C.F.R. § 3.344(c), applicable to ratings such as this one in effect for less than 5 years, requires improvement before an evaluation is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation. 38 C.F.R. § 3.105(e) contains procedures that the RO must follow when reducing a rating, including issuance of a proposed reduction in rating and an opportunity for presentation of additional evidence. In November 2013, the Veteran was afforded a VA examination. He reported that he experienced depression every day, and was easily irritated, since he always felt like he was back in Iraq. The Veteran stated that he was often angry at others and argued over trivial matters. He noted difficulty sleeping without medication, and concentrating daily. The Veteran had become hyper-vigilant and was often paranoid of others. The examiner indicated that the Veteran experienced nightmares, flashbacks, irritability, anger fits, and insomnia. He had a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, and mild memory loss. The examiner noted that the Veteran’s depression would incapacitate him momentarily and alienate people. The examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity. VA clinical records show that in March 2014, the Veteran reported daily panic attacks and nervousness around people. In September 2018, the Veteran had suicidal thoughts, poor impulse control, intrusive thoughts, disorientation episodes, and poor concentration. In an April 2014 statement, the appellant reported that the Veteran experienced panic attacks around people when he was sober. She stated that the Veteran did not go out of the house or talk to people. The appellant further noted that the Veteran only felt comfortable with people when he was drunk. See also December 2016 VA Form 9. In light of the above evidence, the Board finds that the reduction in the disability rating for the Veteran’s PTSD was not proper. The evidence of record does not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work at the time of the November 2013 reduction. For example, the November 2013 VA examination report shows that the Veteran exhibited symptoms of continuous depression, anger fits, irritability, suspicious, and paranoia. The examiner further noted that the Veteran’s depression would incapacitate him momentarily and alienate people. Thus, the medical treatment records and competent and credible lay statements from the Veteran and appellant indicate that the functional impacts of the Veteran’s PTSD to include major depressive disorder, panic disorder without agoraphobia, and history of alcohol abuse remained the same, and potentially worsened. For the foregoing reasons, the Board finds that the reduction from 70 percent to 50 percent for PTSD to include major depressive disorder, panic disorder without agoraphobia, and history of alcohol abuse was not proper, and that restoration of the 70 percent rating is warranted. 38 C.F.R. § 3.344 (c). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel