Citation Nr: 19148305 Decision Date: 06/20/19 Archive Date: 06/20/19 DOCKET NO. 16-61 083 DATE: June 20, 2019 ORDER Restoration of a 100 percent evaluation for posttraumatic stress disorder (PTSD) effective October 1, 2016 is denied FINDING OF FACT An August 2016 reduction of the disability evaluation for PTSD from 100 percent to 70 percent effective October 1, 2016, was made with evidence of clear and sustained improvement in the disability; it was made with adherence to applicable adjudication standards. CONCLUSION OF LAW The criteria for restoration of a 100 percent schedular evaluation for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.105(e), 3.344, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2004 to October 2005, May 2006 to October 2006, and November 2007 to December 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which reduced the assigned rating for service-connected PTSD from 100 percent to 70 percent, effective October 1, 2016. The Veteran disagreed with the reduction and this appeal follows. The Veteran was scheduled to appear at the Muskogee RO for a personal hearing before a Veterans Law Judge in June 2019; however, he withdrew his request for a hearing pursuant to 38 C.F.R. § 20.704(e). 1. Whether the reduction of the Veteran’s disability rating for PTSD from 100 percent to 70 percent, effective October 1, 2016, was proper. When a reduction in the rating of a service-connected disability or employability status is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). 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. Id. In every reduction case, there must be a finding of improvement. In Murphy v. Shinseki, 26 Vet. App. 510 (2014), the Court of Appeals for Veterans Claims (Court) stated that the RO and Board are required “in any rating-reduction case” to determine (1) “based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability;” (2) “whether the examination reports reflecting such change are based upon thorough examinations;” and (3) whether any improvement “actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work” (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13 (1992). Murphy, 26 Vet. App. at 517 (quoting Brown v. Brown, 5 Vet. App. 413, 421 (1993)). Similarly, Faust v. West held that VA must comply with regulations “applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” 13 Vet. App. 342, 349 (2000) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999); Brown, 5 Vet. App. at 420); Murphy, 26 Vet. App. at 517. Even where the assigned rating is less than five years old and 38 C.F.R. § 3.344(c) applies, improvement in a Veteran’s ability to function must still be shown under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21. The burden is on the Board to establish by a preponderance of evidence that the rating reduction was warranted. Brown, 5 Vet. App. at 420. There must be actual improvement in the disability, not just a failure to meet the requirements of a rating under the currently assigned Diagnostic Code. Under 38 C.F.R. § 3.344(c), if a disability rating has been in effect for fewer than five years, a reduction must be based upon a finding of “improvement” in the disability. The improvement must also reflect an actual improvement in the ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421. A determination that a disability has improved must be based upon a review of the entire history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (“[w]hether or not a disability has improved cannot be determined without reference to prior records detailing the history of that condition”). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a Veteran is capable of more than marginal employment. Id. The evidence of record at the time of the rating reduction must support the reduction and the pertinent post-reduction evidence favorable to restoring the rating must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). When determining whether improvement is shown, the last examination upon which the rating at issue was based or continued is generally the comparison point. See Hohol v. Derwisnki, 2 Vet. App. 169 (1992); see also Collier v. Derwinski, 2 Vet. App. 247 (1992) (holding that where a rating is continued to determine if improvement was shown the comparison point could also include prior examinations). Examinations reflecting improvement must be thorough and adequate. Faust, 13 Vet. App. at 349; see also Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that an examiner’s failure to review the claims file rendered the reduction decision void). Here, the Veteran contends that the reduction from 100 percent to 70 percent for his service-connected PTSD was not warranted. He argues that the evaluation should be restored. See, e.g., the notice of disagreement (NOD) dated March 2016. As an initial matter, the Board finds that the evidence does not indicate, and the Veteran does not contend, that the relevant notice requirements in effectuating the reduction have not been met in this case. The procedural requirements set forth in 38 C.F.R. § 3.105(e) regarding reduction in benefits (i.e. the issuance of a rating decision proposing the reduction or discontinuance and setting out all material facts and reasons underlying the proposal; notification to the Veteran; and providing the Veteran 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level) apply in this case as its reduction affected his overall combined evaluation or monthly monetary amount. See 38 C.F.R. § 3.105(e). To this end, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(e). Specifically, the Board notes that the Veteran underwent a VA examination as to his service-connected PTSD in December 2015. In a January 2016 rating decision, the Veteran’s 100 percent evaluation for his service-connected PTSD was proposed to be reduced to 70 percent on the basis of that examination. The Veteran was informed of his rights, including to a predetermination hearing and to submit additional evidence, in a January 2016 letter. The AOJ finalized the discontinuance of the Veteran’s 100 percent evaluation for PTSD in an August 2016 rating decision and reduced the assigned rating to 70 percent, effective October 1, 2016. The effective date of the reduction, October 1, 2016, was effective 60 days from the date of notice of the August 2016 final rating action, as set forth in the applicable VA regulation. In light of these facts, the Board finds that the particularized procedure for the reduction of the Veteran’s 100 percent rating for PTSD to 70 percent was appropriately and adequately completed in this case. See 38 C.F.R. § 3.105(e). The question that remains is the substantive question of whether the reduction was proper. In essence, as explained above, the law requires that the service-connected disability must have demonstrated improvement in order for an assigned rating to be reduced. 38 C.F.R. § 4.13. In an August 2012 rating decision, the disability rating assigned to the Veteran’s service-connected PTSD was increased to 100 percent, effective May 15, 2012 based upon the findings of a June 2012 VA psychological examination. In the decision, the RO noted that, as there was a likelihood of improvement, the assigned evaluation was not considered permanent and was subject to a future review examination. Rating decisions dated February 2014 and November 2014 confirmed and continued the 100 percent rating. In January 2016, following a December 2015 VA examination, the RO proposed to reduce the assigned evaluation for PTSD from 100 to 70 percent. In August 2016, the RO reduced the disability evaluation of PTSD to 70 percent, effective October 1, 2016. As the 100 percent disability rating was not in effect for five years or more, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. The Veteran asserts that the reduction to a 70 percent rating for service-connected PTSD was not warranted. However, a review of the record shows his PTSD materially improved so as to warrant a reduction. Thus, for the reasons set forth below, the Board finds that the reduction was proper. Under the applicable rating criteria, a 70-percent rating for PTSD 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. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. A 100-percent rating is assigned for PTSD 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. A June 2012 VA psychological examination confirmed a diagnosis of PTSD and alcohol disorder. The examiner indicated that the Veteran’s psychological symptoms manifested in total occupational and social impairment. The Veteran reported that he has lost girlfriends due to his PTSD; his spouse left him in 2010 due to his impatience, irritability, anger, and social intolerance. He indicated that he is currently unemployed and has tried several jobs following his active duty discharge without success. The Veteran ran a fellow driver from the road out of anger and reported that his last physical altercation was two weeks ago. The examiner noted the Veteran’s report of flashbacks, avoidance, markedly diminished interest or participation in significant activities, feeling of detachment or estrangement from others, restricted range of affect, and sense of a foreshortened future. The Veteran further endorsed difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response, depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independent, appropriately and effectively, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, and impaired impulse control. The Veteran additionally reported difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. The examiner concluded that the “Veteran’s impairments from PTSD (hypervigilance, anger, violence, panic insomnia, alcohol abuse, unemployability, and family function) are all worsened and leading to chronic unemployment and near total social impairment.” The Veteran was afforded a VA examination in July 2013 at which time the examiner indicated that his psychological symptoms manifest in “[o]ccupational and social impairment with reduced reliability and productivity.” The examiner indicated that the Veteran remained unemployed, but is in a new romantic relationship. The Veteran lives with his parents and spends most of his time with them. He also has one friend who visits him about once a week. The Veteran endorsed intrusive thoughts, avoidance, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, restricted range of affect, sense of a foreshortened future, difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. He also described depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting. The examiner noted that the Veteran “has gradually isolated himself from his social network due to a desire to be alone, decreasing his support system. He struggles with his family relationships and has lost his first marriage. Finally, he has been fired from two jobs in the past due to inability to interact well with others.” The examiner stated that the Veteran’s “quality of life is fair to poor due to these symptoms.” A VA psychological examination conducted in October 2014 indicated that the Veteran’s symptoms manifest in “occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood.” The Veteran reported flashbacks, intrusive thoughts, avoidance, persistent and exaggerated negative beliefs or expectations about himself, others, or the world, as well as markedly diminished interest or participation in significant activities. He described feelings of detachment or estrangement from others, irritable behavior and outbursts of anger, reckless or self-destructive behavior, exaggerated startle response, depressed mood, and anxiety. The Veteran was afforded another VA psychological examination in December 2015. The examiner determined that the Veteran’s psychological symptoms manifest in “[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” The Veteran has been married for one year. He reported that he will leave for several days at a time. He becomes overwhelmed with two children in the home. He explained that he will explode before he leaves and will feel so bad that he will leave. The Veteran reported that he has a daughter whom he sees every other weekend; they have a ‘pretty good’ relationship. The Veteran also reported having a “pretty good” relationship with his parents. The Veteran indicated that he has not worked in over three years. He last worked at a call center for two months; he was not able to handle the stress and left. The Veteran stated that he attempted to go out to eat at a restaurant, but had a panic attack. The Veteran endorsed avoidance, persistent and exaggerated negative beliefs or expectations, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, and persistent inability to experience positive emotions. He further reported irritable behavior with outbursts of anger, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. In addition, the Veteran described depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, and impaired impulse control. He also reported suicidal ideation. As noted above, under 38 C.F.R. § 4.130, a 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. 38 C.F.R. § 4.130, DC 9411. The pertinent evidence delineated above shows that there was sustained improvement in the Veteran’s PTSD symptoms. Specifically, the symptoms associated with his service connected PTSD did not more nearly approximate total occupational and social impairment in the July 2013, October 2014, or December 2015 VA examination reports. 38 C.F.R. § 4.7. Symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time and place; memory loss for names of close relatives, own occupation or name, were not shown. Critically, the evidence shows that, although the Veteran is remained unemployed and experienced significant social impairment, he was able to maintain social relationship including with his parents, daughter, and a friend. Moreover, since the June 2012 VA examination, which served the basis for the grant of the 100 percent rating, the Veteran got remarried and maintains a relationship with his spouse. Critically, therefore, the evidence no longer demonstrates total occupational and social impairment due to PTSD. Rather, as endorsed by the October 2014 and December 2015 VA examiners, the Veteran’s PTSD and substance abuse disorder is now manifested by occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Thus, the Board finds that, based on the consistent medical evidence of multiple VA examinations and treatment records, sustained material improvement has been shown since the June 2012 VA examination, to include the July 2015 VA examination and continuing beyond that time. The reduction from a 100 percent rating to a 70 percent rating for service-connected PTSD, effective October 1, 2016, is therefore proper. 38 C.F.R. § 3.344(c); Murphy, 26 Vet. App. 510; Brown, 5 Vet. App. at 421-422. The preponderance of the evidence is unfavorable to the claim, and under these circumstances the benefit-of- the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.