Citation Nr: 18160072 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 15-15 672 DATE: December 21, 2018 ORDER Restoration of the 70 percent rating for service-connected posttraumatic stress disorder (PTSD) is granted, effective June 1, 2015. FINDINGS OF FACT 1. The Veteran was in receipt of a 70 percent rating for service-connected PTSD from December 11, 2009, to June 1, 2015, a period of more than five years. 2. The February 2015 rating decision and the April 2015 Statement of the Case both failed to consider the provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW Since the reduction of the rating for service-connected PTSD from 70 percent to 30 percent was not in accordance with applicable law and regulations, the criteria for restoration of the 70 percent rating, effective June 1, 2015, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2, 4.13. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from January 1969 to November 1970. This matter is before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, which reduced the rating for the Veteran’s service connected PTSD from 70 percent to 30 percent, effective June 1, 2015. Rating reduction Congress has provided that a Veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When an agency of original jurisdiction (AOJ) reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Initially, where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award 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 action expires. 38 C.F.R. § 3.105 (e). In a May 2014 rating decision and a May 2014 letter, the RO notified the Veteran of the proposed rating reduction and set forth all material facts and reasons for the reduction. In the May 2014 letter, the RO instructed the Veteran to submit evidence within 60 days to show that his rating should not be reduced and to request a predetermination hearing, if desired. In the instant case, the AOJ complied with 38 C.F.R. § 3.105(e) in the May 2014 letter. As the RO has met the procedural requirements associated with a reduction, the issue now becomes whether the reduction was proper based on the evidence of record. The regulations pertaining to the reduction of a disability rating are contained in 38 C.F.R. § 3.344. Section 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. In regard to disability ratings in effect for a period of 5 years or more, the provisions of 38 C.F.R. § 3.344 (a) and (b) are for application. See 38 C.F.R. § 3.344 (c). Where a veteran’s schedular rating has been both stable and continuous for 5 years or more, the rating may be reduced only if the examination on which the reduction is based is at least as full and complete as that used to establish the higher evaluation. 38 C.F.R. § 3.344 (a). Ratings for disease subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Moreover, though material improvement in the mental or physical condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. In considering the propriety of a reduction, VA must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Care must be taken, however, to ensure that a change in an examiner’s evaluation reflects an actual change in the Veteran’s condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. In addition, VA must determine that an improvement in a disability has actually occurred, and that such improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In the present case, a June 2007 rating decision granted the Veteran service connection for his PTSD, and assigned a 30 percent disability rating under Diagnostic Code 9411, effective May 19, 2006. In December 2009, the Veteran filed a claim for an increased rating for his PTSD stating that his condition had become substantially worse. An April 2010 rating decision increased the Veteran’s service-connected PTSD rating from 30 percent to 70 percent. The Veteran underwent a VA examination in April 2014 that listed, among other symptoms, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A May 2014 rating decision proposed to reduce the Veteran’s rating for his service-connected PTSD from 70 percent to 30 percent, and listed the April 2014 VA examination in the evidence. In a February 2015 rating decision, the AOJ reduced the rating for the Veteran’s service-connected PTSD from 70 percent to 30 percent, effective date June 1, 2015. In its reason for the reduction, the AOJ stated the rating criteria and listed the April 2014 VA examination as evidence. The April 2015 Statement of the Case described the Veteran’s procedural history, stated the rating criteria, and concluded that there was no evidence to warrant a change in the February 2015 rating decision. Because the Veteran’s 70 percent rating had been in effect more than five years at the time of the February 2015 rating decision, 38 C.F.R. § 3.344 (a) and (b) are applicable. The May 2014 notification letter, the February 2015 rating decision, and the April 2015 Statement of the Case fail to provide notice of, or reflect consideration of, the provisions of 38 C.F.R. § 3.344. Specifically, the February 2015 rating decision and the April 2015 Statement of the Case fail to address whether the updated VA examination and treatment reports were as full and complete as the examination or records upon which the original rating was established. The AOJ, in its reason for the reduction, merely stated what the rating criteria is and listed the evidence considered. There was no discussion of what the evidence showed or the basis of finding that a reduction was proper. There was no explanation as to where improvement was shown. Further, the February 2015 rating decision and the April 2015 Statement of the Case fail to discuss whether the evidence demonstrated a material improvement that would be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344 (a); Kitchens v. Brown, 7 Vet. App. 320 (1995). The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio as such omissions are error and not in accordance with the law. See Greyzck, 12 Vet. App. at 292; See also Hayes v. Brown, 9 Vet. App. 67, 73 (1996). Accordingly, the 70 percent disability rating for the Veteran’s service-connected PTSD is restored, effective June 1, 2015. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Purcell, Law Clerk