Citation Nr: 18158358 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-34 601 DATE: December 14, 2018 ORDER Restoration of the 50 percent rating for posttraumatic stress disorder (PTSD) effective February 1, 2015, through July 16, 2015, is granted. Entitlement to an initial rating of 100 percent for PTSD from February 24, 2014, through July 16, 2015, is granted. FINDINGS OF FACT 1. A December 2014 rating decision implemented the disability rating reduction from 50 percent to 30 percent for the Veteran’s PTSD, effective February 1, 2015. At that time, the 50 percent rating had been in effect for less than five years. 2. The AOJ rating decision which reduced the disability rating from 50 percent to 30 percent effective February 1, 2015, is based on failure to attend VA examination with good cause shown for failing to attend with subsequent favorable evidence which does not support the rating reduction. 3. From February 24, 2014, the Veteran’s PTSD symptoms more closely resembled the symptoms for a rating of 100 percent disabled due to persistent hallucinations and persistent danger of hurting self or others. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected PTSD from 50 percent to 30 percent from February 1, 2015, through July 16, 2015, is not supported and restoration of the 50 percent disability rating for that time period is warranted. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.129 (2018). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to a 100 percent rating for PTSD from February 24, 2014, through July 16, 2015, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training from June 2005 to February 2006, and active duty service from March 2006 to February 2014. The Veteran’s PTSD is currently rated as 50 percent disabling from February 24, 2014, to January 31, 2015; 30 percent disabling from February 1, 2015, to July 16, 2015; and 100 percent disabling since July 17, 2015. The Veteran filed his initial claim for PTSD in February 2014. In an April 2014 rating decision, the AOJ rated the Veteran’s PTSD as 50 percent disabling. A September 2014 rating decision proposed a reduction in the Veteran’s PTSD rating, and a December 2014 rating decision reduced the rating to 30 percent disabled. In July 2015, the Veteran filed an application for disability for PTSD and one other claim. As none of the previous rating decisions had become final, the Board accepts the July 2015 filing as a notice of disagreement encompassing both disagreement with the rating reduction, and disagreement with the original rating. Thus, the Board has rephrased these issues on the title page to reflect the separate increased rating and rating reduction issues. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Restoration of the 50 percent rating for PTSD effective February 1, 2015, through July 16, 2015 In determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction did result in a reduction of VA compensation being paid to the Veteran reducing his overall rating from 100 percent disabled to 90 percent disabled, effective February 1, 2015. Thus, the procedural protections of 38 C.F.R. § 3.105(e) apply. In September 2014, the AOJ notified the Veteran of the proposed reduction in rating for the claim at issue. No new evidence was received within 60 days, and a December 2014 rating decision reduced the evaluation of the disability to 30 percent, effective February 1, 2015. Therefore, the procedural protections of 38 C.F.R. § 3.105(e) have been satisfied. In cases where a rating has been in effect for less than 5 years, the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this case, the Veteran’s 50 percent disability rating was awarded effective February 24, 2014. The rating was reduced effective February 1, 2015. Accordingly, 38 C.F.R. § 3.344(c) applies. Additionally, 38 C.F.R. § 4.129 applies, as the Veteran was awarded a 50 percent rating for PTSD upon discharge, as his discharge from service was due, in part, to PTSD symptoms from a highly stressful in-service event. See April 2013 Medical Evaluation Board Proceedings. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.” Brown v. Brown, 5 Vet. App. 413, 420 (1993); Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, “the Board must ‘establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.’” Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ’s reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Upon consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Veteran’s service-connected PTSD from 50 percent to 30 percent from February 1, 2015, through July 16, 2015 was improper. The initial 50 percent evaluation was assigned based on 38 C.F.R. § 4.129. The Board notes that while in service, the Veteran underwent a February 2013 psychiatric examination and April 2013 medical evaluation board proceedings. Under 38 C.F.R. §4.129, a mandatory examination must be scheduled six months after discharge. In this case, a VA PTSD examination was scheduled for July 24, 2014. The Veteran did not attend the scheduled examination. The AOJ determined that the Veteran did not show good cause for missing the scheduled VA examination, and reduced the rating to 30 percent based on treatment records from February 2013 to July 2014. However, in his June 2016 substantive appeal, the Veteran reported that his car had been stolen, preventing him from attending the VA examination, and that the AOJ was unable to schedule a VA examination closer to his home. The Board notes that the Veteran has attended all other scheduled VA examinations, including VA examinations scheduled a month later. The Board finds that the Veteran is credible and has shown good cause for missing the July VA PTSD examination. Additionally, as discussed in the section below, the Board finds that the Veteran’s symptoms during the relevant time period more closely resemble the symptomology for a 70 percent rating. Finally, pertinent post-reduction evidence favorable to restoring the rating also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). An October 2015 VA examination indicated that the Veteran’s PTSD symptoms caused total impairment, and resulted in a 100 percent rating since July 17, 2015. See October 2015 Rating Decision. Accordingly, the action to reduce the rating is not supported on a factual basis as addressed below and the 50 percent evaluation for PTSD is restored effective February 1, 2015, as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to an initial rating of 70 percent for PTSD from February 24, 2014, through July 16, 2015 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 (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. 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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability over the time period beginning one year before the claim was filed through the final decision on that claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Separate evaluations may be assigned for separate time periods based on the facts found in the record. Fenderson v. West, 12 Vet. App. 119 (1999). If two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. From February 24, 2014, to July 16, 2015, the Veteran’s PTSD is rated at 50 percent disabling under Diagnostic Code 9411. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned where there is evidence of 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; obsession 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned for 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; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to “DSM-IV,” Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fourth Edition (1994). The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board in August 2016 (i.e., after August 4, 2014), the DSM-5 is applicable to this case. The Board notes that the global assessment of functioning scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). As the DSM-5 applies in this case, the global assessment of functioning scale is not used for gauging psychiatric impairment. See Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202 (Feb. 23, 2018). In February 2013, the Veteran underwent an in-service PTSD examination. At that time, his symptoms included nightmares; intrusive memories; physical and emotional reactivity; avoidance behavior; emotional withdrawal and numbing; diminished participation in activities; insomnia; hypervigilance; irritability; exaggerated startle reflex; and impaired concentration and memory. He reported thoughts that he would be better off dead, and reported mild auditory and visual hallucinations almost daily. An April 2013 medical evaluation board determined the Veteran was unfit for service in part due to his PTSD. Prior to discharge, December 2013 treatment records reflect suicidal ideation “at times” with plan but no intent. February 2014 VA treatment records contain an initial psychiatric examination after discharge from service. At that time, the Veteran had high anxiety; depression; slight irritability; and a short temper. His affect was flat and blunted. His suicide screen reflected low suicide risk; however, the Veteran reported suicide-related ideation. He reported auditory, visual, and tactile hallucinations, including hearing voices, seeing people and animals, and feeling things crawling on his skin. His treatment plan consisted of decreasing auditory and visual hallucinations. May 2014 treatment records from Fort Carson indicate that the Veteran reported elevated depressive symptoms, but denied any suicidal tendencies. He had a flat affect with a clam mood and cooperative attitude. February 2015 VA treatment records reflect that the Veteran reported that his PTSD symptoms were worsening, noting that he was always sleepy and unable to “figure things out.” April 2015 VA treatment records indicate positive suicide risk, and June 2015 VA treatment records indicate that the Veteran’s imminent risk of suicide was high due to suicidal thoughts. The Board notes that subsequent to the time period at issue, the Veteran underwent an October 2015 VA examination that reflected total impairment and resulted in a 100 percent rating for his PTSD symptoms, effective July 17, 2015. See October 2015 rating decision. Relevant to the time period at issue, during that VA examination, the Veteran reported being in a fight six months prior where he hurt another man. From February 24, 2014, through July 16, 2015, the Veteran has exhibited symptoms that include suicidal ideation, sometimes with a plan; auditory, visual, and tactile hallucinations, and impaired impulse control resulting in a fight; among other symptoms. His hallucinations have been persistent since service, and the Veteran was deemed at high risk for suicide by VA clinicians. The Board finds that the Veteran’s PTSD symptoms have more closely resembled the symptoms for a rating of 100 percent disabled due to persistent hallucinations and persistent danger of hurting self or others since service discharge. The Board finds no appreciable worsening of symptoms since service discharge and the October 2015 VA examination which found total impairment. As such, the Veteran is entitled to a 100 percent schedular rating for PTSD since February 24, 2014. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel