Citation Nr: 18159571 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-63 619 DATE: December 19, 2018 ORDER The reduction in the disability rating for a back disability from 40 percent to 10 percent, effective March 1, 2008, was not proper, and is void ab initio. A rating in excess of 40 percent for a back disability is dismissed without prejudice. A rating in excess of 70 for a psychiatric disability, characterized as posttraumatic-stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The rating reduction for the Veteran’s assigned disability rating for a back disability was not carried out in accordance with applicable procedures and is void ab initio. 2. In his December 2016 substantive appeal, as well as in correspondences in December 2016 and February 2017, the Veteran indicated that a grant of 40 percent would satisfy in full his appeal for an increased rating for a back disability. 3. Throughout the period on appeal, the Veteran’s psychiatric disorder was manifested by occupational and social deficiencies in most areas; there is no showing of total occupational and social impairment. CONCLUSIONS OF LAW 1. The reduction in disability rating for a back disability from 40 percent to 10 percent, effective March 1, 2008, was not proper, and is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.124a, Diagnostic Codes (DC) 5237, 5242. 2. The appeal with respect to the claim of entitlement to an increased rating for a back disability is dismissed due to the absence of a controversy at issue. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 3. The criteria for a rating in excess of 70 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1997 to May 2005. As a preliminary matter, in February 2017, the Veteran submitted a correspondence stating “I do not wish to continue my appeal, instead I have filed form 21-526EZ to have the injuries on appeal re-evaluated.” Subsequently, the Veteran’s representative submitted two separate informal hearing presentations for the issues on appeal. Further, in March 2017, the issues on appeal were certified to the Board. Moreover, in April 2017, the Regional Office (RO) notified the Veteran that it was unable to process to the Veteran’s Form 21-526EZ because those issues were still on appeal. Therefore, in light of the fact that the Veteran was led to believe his claims were still on appeal and that his new claims could not be processed, in conjunction with the Veteran’s express desire to seek increased ratings for the issues on appeal, the Board finds that the Veteran’s February 2017 correspondence is not a valid withdraw of the issues on appeal. The Board observes that in April 2016, the Veteran was granted TDIU for the entire period on appeal. Therefore, while a TDIU claim is part and parcel to an increased rating claim, the Board determines that this is a full grant of the benefits with respect to TDIU, and this issue is no longer on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Wilkie, No. 16-3519 (Vet. App. December 6, 2018). The Board notes that in November 2007, the RO reduced the Veteran’s back disability rating from 40 percent to 10 percent, effective March 1, 2008. Further, in February 2008, the Veteran filed a notice of disagreement (NOD) to the rating reduction. However, the RO did not accept the NOD because it determined that the Veteran was only appealing the proposed rating decision. Nevertheless, the Board has reviewed the NOD and finds it to be a valid and timely NOD of the actual rating reduction decision. Therefore, as reflected herein, given that the issue of the propriety of the rating reduction is intertwined with the Veteran’s increased rating claim, the Board determines that it has jurisdiction over this issue. Further, the Board observes that the RO issued a statement of the case and supplemental statement of the case for the Veteran’s increased rating claim for a right ankle disability. However, it appears to the Board that the RO is still developing this issue. As such, the Board declines to take jurisdiction over this claim. The Board also notes that the RO received new medical treatment records that were not previously considered in its last supplemental statement of the case. However, a review of these records reveals that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file, are redundant and/or cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c). Lastly, the Board acknowledges that in November 2018, the Veteran submitted a RAMP opt-in election form that appears to be for an issue not on appeal. However, to the extent the Veteran intended to opt into RAMP for the issues on appeal, given that his appeal was already activated at the Board when his form was received, he is not eligible for the RAMP program for this particular appeal. Rating Reduction In July 2005, the RO granted the Veteran’s service connection claim for a back disability and assigned a 40 percent rating, effective May 2, 2005. The RO also notified the Veteran that because his condition was likely to improve, his evaluation is not considered permanent and subject to a future review examination. As such, the Veteran was given a new VA examination in August 2007, and his back rating was reduced to 10 percent, effective March 1, 2008, based upon the examination findings. The Veteran asserts that this reduction was not proper. Where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. VA must also notify the veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). Here, the Veteran was notified in September 2007 of the proposed action, the reasons and bases therefore, and presented him with 60 days to present additional evidence and to testify at a hearing before the RO if he so wished. Therefore, he was properly notified of his rights and given the appropriate time to submit evidence before his rating was reduced. As such, VA met the due process requirements under 38 C.F.R. § 3.105(e) and (i). In addition to the due process requirements discussed above, prior to reducing a Veteran’s disability rating, VA is required to comply with several 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 Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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). Moreover, in certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. However, as the rating has been in effect for less than 5 years, the additional protections under 38 C.F.R. § 3.344(a) and (b) are not applicable. However, even absent the protections of 38 C.F.R. § 3.344, the Board finds that the proper findings for a rating reduction of the Veteran’s service-connected back disability were not made in this case. First and foremost, the Board finds that the November 2007 rating decision demonstrates that the RO has essentially analyzed the rating reduction issues just as it would a claim for an increased rating. Specifically, in it is analysis, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344, as well as the substantive requirements under Faust. Instead, the RO simply determined that the Veteran did not currently meet the requirements for a 40 percent rating. Moreover, there was no discussion regarding any actual improvement of the Veteran’s disabilities since the date of the initial award of service connection in July 2005. Further, to the extent the Veteran does not currently meet the criteria for the initially assigned 40 percent rating, the Board observes that the Veteran also did not meet the criteria for a 40 percent rating at the time it was originally assigned. As such, given that a rating reduction appeal focuses on the propriety of the reduction without a demonstration of actual improvement, and is not the same as an increased rating issue, the rating reductions are void ab initio. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In any event, the Board notes that a comparison of the medical evidence on record at the time the Veteran’s disabilities on appeal were assigned a 40 percent rating and when they were reduced to 10 percent, including the VA examinations from March 2005 and August 2007, reflect that the severity of the Veteran’s back disability has essentially remained the same. Specifically, at his March 2005 VA examination, the Veteran had 50 degrees of flexion, 25 degrees of extension, and a total of 175 degrees of combined range of motion. Further, at his August 2007 VA examination, the Veteran exhibited severe pain and functional limitation that limited his flexion to 72 degrees, extension to 29 degrees, and total combined range of motion to 193 degrees. Moreover, the Board notes that while the objective evidence from the August 2007 VA examination may be consistent with some back improvement, the evidence does not establish that the Veteran had an improvement allowing him to better function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust,13 Vet. App. 342, 350 (2000). Therefore, the RO has not sufficiently demonstrated that the Veteran’s disability has improved. 38 C.F.R. § 3.105. Accordingly, the action to reduce the disability ratings for the Veteran’s service-connected back disability is void, and the 40 percent rating is restored as though the reduction had not occurred. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating The Veteran is seeking increased staged ratings for his service-connected psychiatric and back disabilities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for a back disability The Board observes that, in his December 2016 substantive appeal, as well as in correspondences in December 2016 and February 2017, the Veteran indicated that a grant of 40 percent would satisfy in full his appeal for an increased rating for a back disability. The Board construes this statement as an indication that an award of 40 percent would satisfy his appeal in full. Here, as discussed, the Board has restored the Veteran’s 40 percent rating for his back disability, and based on his statements is considered a full grant of the benefits requested by the Veteran. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). As such, there is no longer an issue in controversy, and a dismissal of this issue is appropriate. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 20.101, 20.202. 2. Entitlement to a rating in excess of 70 for a psychiatric disability, characterized as PTSD The Veteran’s psychiatric disorder has been assigned an initial disability rating of 70 percent under 38 C.F.R. § 4.130, DC 9411. In order to warrant the next higher 100 percent rating, the evidence must demonstrate total occupational and social impairment due to such symptoms such 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/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. After a review of the evidence of record, the Board determines that a rating in excess of 70 percent is not warranted for any period on appeal. Indeed, while the Veteran has occasional symptoms that could support a higher rating, the Veteran’s symptoms on balance do not otherwise cause total occupational and social impairment. Specifically, in a December 2015 VA examination, the Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, chronic sleep impairment, disturbances in motivation and mood, inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. However, these stated symptoms do not represent the level of total impairment contemplated by the diagnostic code. Moreover, on examination, the examiner reported that the Veteran presented as casually dressed with good grooming and hygiene. His behavior was appropriate, cooperative, and he was alert/oriented in all spheres. Further, while his mood was significantly dysthymic his thought process and speech were all normal or unremarkable. There was no evidence of delusions, hallucinations, panic attacks more than once a week, obsessive/ritualistic behaviors, homicidal thoughts, episodes of violence, or a thought disorder. As such, the examiner opined that the Veteran’s psychiatric symptoms caused occupational and social impairment with in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a February 2016 treatment evaluation, the Veteran’s symptoms were mostly consistent with the criteria for the lesser 50 percent rating, with only some symptoms meeting the criteria for a 70 percent rating. Here, he presented on-time, casually dressed, and appropriately groomed. He was responsive, oriented in all spheres, and demonstrated linear goal directed thoughts. While he was anxious and depressed, there was no evidence of suicidal ideations. His judgment and insight were normal. In November 2016, the Veteran noted that his therapy visits were beneficial and that they helped to manage his stress. The Veteran endorsed symptoms of a negative mood and concentration difficulties, but nevertheless indicated that he was able to maintain being a full-time law student and single parent. There were no gross psychiatric symptoms and he denied suicidal and homicidal ideations. In view of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 70 percent for the period on appeal. Specifically, the Board finds that while the Veteran stated that he has at times had thoughts of hopeless, he has not contemplated suicide. More importantly, the Veteran did not exhibit 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/or memory loss for names of close relatives, own occupation, or own name. As such, there is not sufficient evidence that the Veteran’s symptoms are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Next, the Board has also considered the extent to which there are other indications of total occupational and social impairment, such as gross impairment of the thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place. See Mauerhan, 16 Vet. App. 436, 444 (2002). In this regard, while the Veteran’s disorder reflects a moderate impact on his social and occupational functioning, he does not have total occupational and social impairment. Specifically, at the December 2015 VA examination, the Veteran stated that he completed college and is currently enrolled in law school. Further, he noted that he had sole and full custody of his two children. Moreover, he indicated that he has a close relationship with his mother, father, brothers, and sisters, who all help and support raising his children. Additionally, the Veteran stated that he is unable to work in his previous field of “construction” due to his physical disabilities. Therefore, on balance, he did not display total social and occupational impairment even when factoring in other relevant criteria outside of the rating code. Mauerhan, 16 Vet. App. 436, 444. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his service-connected psychiatric disorder is worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability and ankle disorder according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Specifically, while the Veteran reported that he had depression, anxiety, and sleep difficulties, and was unable to work due to his psychiatric disorder, these symptoms were discussed and addressed by the VA examiners and treating medical providers. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including anxiety, depression, sleep impairments, social and occupational difficulties, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board’s analysis. As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel