Citation Nr: 20009717 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 16-22 477 DATE: February 6, 2020 ORDER Entitlement to restoration of a 70 percent evaluation for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, is denied. FINDINGS OF FACT 1. The decision to reduce the disability evaluation for an acquired psychiatric disorder, to include PTSD, from 70 percent to 50 percent, effective December 1, 2015, was supported by a preponderance of the evidence and was made in compliance with all applicable due process laws and regulations. 2. The Veteran’s acquired psychiatric disorder, to include PTSD, was manifest by no more than moderate symptomatology resulting in occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas or total occupational and social impairment is not demonstrated. CONCLUSIONS OF LAW 1. The reduction in the disability rating for an acquired psychiatric disorder, to include PTSD, effective December 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.321, 4.130, Diagnostic Code 9411-9412 (2018). 2. The criteria for an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 9411-9412 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1969 to September 1970. The Veteran had service in the Republic of Vietnam. A hearing was conducted by video conference in October 2019 before the undersigned Veteran’s Law Judge, at which the Veteran testified; a transcript is of record. 1. Entitlement to restoration of a 70 percent evaluation for an acquired psychiatric disorder, to include posttraumatic stress disorder, to include whether the reduction was proper. In June 2015, the Regional Office (RO) proposed to reduce the Veteran’s 70 percent evaluation for his service-connected PTSD with panic disorder to 50 percent for an acquired psychiatric disorder, to include PTSD. This reduction was accomplished in a September 2015 rating decision, effective December 1, 2015. Initially, the Board observes the RO complied with the procedural safeguards regarding the manner in which the appellant was given notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105. The Board will now consider the propriety of the rating reduction. A rating reduction is not proper unless the Veteran’s disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Because the 70 percent rating was not in effect for a period exceeding five years, the provisions of 38 C.F.R. § 3.344 (a) regarding stabilization of disability ratings do not apply, and a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, an acquired psychiatric disorder, to include PTSD, was rated under the criteria found at 38 C.F.R. § 4.130, DC 9411-9412. The rating criteria pertaining to the Veteran’s appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 50 percent evaluation is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where the disorder is manifested by 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; obsessional rituals which interfere with routine activities; speech that is 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 work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). 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. Id. 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 (b). Turning to the record, the previously assigned 70 percent evaluation was awarded by a July 2012 rating decision, which was based on a May 2012 VA examination. The examiner diagnosed the Veteran with PTSD and panic disorder. The Veteran arrived on time and was appropriately dressed and groomed. His affect was somewhat flat. Veteran was oriented to place but had to correct himself regarding the day of the month. The Veteran was noted as currently living in a homeless shelter and as having difficulty with other residents. The Veteran reported that he had friends through church and kept in contact with many friends. He has family nearby that he maintains contact with as well. The Veteran reported having higher anxiety and increased irritability since being homeless. The Veteran further reported thoughts of suicide when he was initially homeless, but he adjusted to things better as time passed. The examiner noted the following symptoms: anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, circumstantial/circumlocutory or stereotyped speech, speech intermittently illogical/obscure/or irrelevant. The Veteran was engaged throughout the interview but was unable to conform to requests from the interviewer to answer questions more succinctly. Throughout the interview, the Veteran exhibited difficulty maintaining focus on questions and went off on tangents with each question asked. The examiner reported that bringing the Veteran back to the initial question was difficult and often ignored. The Veteran displayed difficulty recognizing and responding to social cues from the interviewer throughout the interview and when the interview was over, the Veteran continued without stopping. The Veteran’s speech contained no bizarre or psychotic content but was mostly unconnected to the topic of discussion. Cognitions were often disconnected and not provided in context to allow the interviewer to follow the Veteran’s logic. The Veteran did not answer some questions asked, but it did not appear that he was doing so intentionally. The Veteran reported panic attacks that occur frequently triggered by hearing others engaged in arguments or himself engaging in arguing. Based on this examination, the July 2012 rating decision granted a 70 percent evaluation for PTSD and panic disorder. In June 2015, the Veteran was afforded another VA examination to assess the severity of his service-connected psychiatric disability. The examiner reported that the Veteran arrived on time and was appropriately dressed and groomed. No remarkable cognitions or behaviors were observed. Veteran indicated he was upset and felt he was “being jerked around” and that he deserved 100 percent service connection. The Veteran was oriented to time and place. He did not spell the word “world” correctly forward but spelled it correctly backwards. The examiner further reported that he had a difficult time gathering information and understanding the Veteran’s symptoms because the Veteran had a tendency to avoid answering questions and to talk about other things and had a lack of chronological order when asked. On several occasions, the Veteran reported a symptom when asked, but later when asked specifically about when a symptom most recently occurred, the Veteran indicated it had been several months or years. The Veteran reported that his worst memory from Vietnam was getting a draft letter and going through basic training. The Veteran then reported his worst memory was flashbacks from the war. The Veteran reported that the whole war is his worst memory. The Veteran did not demonstrate a change in affect, behavior, or cognitions while Veteran related this history. The Veteran did not provide further detail for his flashbacks, instead the Veteran began talking about panic attacks. Veteran reported that panic attacks occur without warning or thoughts. He reported that he spends most of his time home alone not having gone out since February 2015. However, he also reported that he forces himself out with his son to take care of errands. The examiner’s review of the record reveals that anxiety triggers included sounds of big planes coming in and taking off at night, Filipinos talking, helicopters, and people who sneak up on him. However, the Veteran did not mention any of these during this examination despite multiple questions about triggers and things that caused intrusive memories. The examiner opined that the Veteran’s current symptoms are better accounted for by a diagnosis of panic disorder and not PTSD and that the diagnosis rendered by the current examiner in 2012 was incorrect and based on limited information provided by the Veteran at that time and upon limited records reviewed at that time. The examiner re-diagnosed the Veteran with a panic disorder and unspecified personality disorder instead of PTSD with a panic disorder. Ultimately, the examiner found that the Veteran appeared to have the resiliency, coping skills and strength to recover from experienced stressors and to have not developed full or chronic PTSD. At the October 2019 hearing, the Veteran testified that it is very difficult for him to leave his house. At the time of the hearing, the Veteran testified that he had not left his house in over a year. Specifically, the Veteran’s representative alleged that the Veteran’s feelings of panic prevent him from leaving the house. The Veteran further testified that he cannot watch any violent movies because they trigger his panic attacks. Also, the Veteran testified that he is cautious out in public because he is afraid of having a panic attack. Veteran testified that he currently has nightmares where he believes he is back in Vietnam and he is not sure if he is dreaming. The Board finds that pursuant to 38 C.F.R. § 3.44 (c), the reexamination in June 2015 disclosed improvement and that a rating reduction from 70 percent to 50 percent for an acquired psychiatric disorder, to include PTSD, was warranted in this case. Specifically, in June 2015 VA examination, the Veteran failed to show any symptoms indicating deficiencies in most areas of his life. Indeed, he indicated having strong social relationships and that he was able to meet someone and get re-married without hinderance caused by his psychiatric disorder. He was shown to be high functioning without disorientation, speech issues, neglect to his appearance or personal hygiene, or any other of the symptoms that would indicate deficiencies in most areas of life as required for a 70 percent evaluation. The June 2015 VA examination demonstrated improvement and there was no indication that the Veteran’s ability to function would not be maintained. As such, the Board finds that the reduction effective December 1, 2015 in the rating for an acquired psychiatric disorder, to include PTSD, was proper. In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine, but the preponderance of the evidence weighs against the Veteran’s claim for a restoration, therefore, the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an evaluation in excess of 50 percent for an acquired psychiatric disorder, to include PTSD Initially, the Board observes that the Veteran filed a claim for an increased evaluation for the Veteran’s service-connected acquired psychiatric disorder, to include PTSD, on or about January 2015. The Board will now turn to whether an increased evaluation is warranted based on the Veteran’s current symptomatology. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran’s acquired psychiatric disability, to include PTSD, does not meet the criteria for an evaluation greater than 50 percent at any time during the appeal period. Specifically, the record is devoid of any objective medical evidence indicating that the Veteran had occupational and social impairment with deficiencies in most areas. In the medical evidence above, the Veteran’s thought processes were described variously as coherent and linear; his speech fluid and normal; his judgment and insight fair; and he was not observed to exhibit hallucinations, delusions or ideations of violence toward himself or others. No findings were made of 70 percent criteria; for example, no findings of impaired impulse control, suicidal ideation, or spatial disorientation. Additionally, the Veteran’s behavior was reported as appropriate and without any obsessive ritualistic behaviors that interfere with routine activities. While the Veteran reported that he has daily panic attacks, the evidence does not find that the Veteran’s panic as near-continuous or depression affecting the ability to function. The findings made during treatment or upon examination do not indicate symptoms which rise to the level of producing deficiencies in most areas of occupational and social functioning and, therefore, those symptoms would not result in totally precluding occupational and social functioning. For example, as already discussed, the record reveals nothing in the nature of persistent delusions or hallucinations; no indication of violence; and no hindrance of thought processes, behavior or memory which would totally inhibit functioning. The Veteran is not entitled to an evaluation in excess of 50 percent for his acquired psychiatric disability, to include PTSD, at any point during the appeal period. As a preponderance of the evidence is against an increased evaluation, the benefit of the doubt rule does not apply, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55 (1990). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, Associate 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.