Citation Nr: 20021372 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-15 521 DATE: March 25, 2020 ORDER The rating reduction from 70 percent to 50 percent, effective March 1, 2018 for service-connected posttraumatic stress disorder (PTSD) was proper, and restoration of the prior rating is denied. Entitlement to a higher disability rating, in excess of 70 percent prior to March 1, 2018, and in excess of 50 percent on and after that date for service-connected posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. A December 2017 rating decision reduced the rating for service-connected PTSD from 70 percent to 50 percent, effective March 1, 2018, and all the due process requirements were met. 2. The February 2017 VA examination and VA treatment records showed that the Veteran’s PTSD symptoms had improved. 3. Prior to March 1, 2018, the Veteran’s service-connected PTSD was manifested by symptoms approximating occupational and social impairment with deficiencies in most areas, and since March 1, 2018, approximating occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The reduction in the rating assigned for PTSD from 70 to 50 percent, effective March 1, 2018, was proper, and restoration is denied. 38 U.S.C. §§ 1155, 5112 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.59, 4.71a, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to a disability rating, in excess of 70 percent prior to March 1, 2018, and in excess of 50 percent on and after that date for service-connected PTSD, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.126, 4.130, DC 9411, 9434-9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1994 to December 2003. This matter comes before the Board of Veteran’s Appeals (Board) from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded to obtain any outstanding private treatment records, to include from a mental health therapist the Veteran mentioned in passing but did not specifically identify during a March 2018 VA examination. Thereafter, to the extent that the RO requested the Veteran to complete and return the enclosed VA Form 21-4142 (see September 2019 correspondence letter), the Board finds that there has been a substantial compliance with the Board remand directive Stegall v. West, 11 Vet. App. 268, 271 (1998). The fact that no records have been obtained pursuant to this directive does not constitute a violation of Stegall here, as the Veteran failed to respond, even after being provided with an opportunity to respond to this request and/or submit any pertinent records. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. 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 favorable to the claimant, when rendering a decision on appeal. 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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Propriety of Reduction Although the only issue certified to the Board was an increased rating in excess of 50 percent for service-connected PTSD, the Board finds that the propriety of the reduction is also on appeal for the following reasons. As discussed more below, a December 2017 rating decision reduced the disability rating from 70 percent to 50 percent, effective March 1, 2018. The Veteran was notified of that decision on January 16, 2018, and his notice of disagreement (NOD) was received on January 16, 2019. In that NOD, he expressly stated it was in response to the January 2018 decision that reduced his PTSD rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992) (the issue on appeal is not whether the Veteran is entitled to an increase, but whether the reduction in rating was proper). Accordingly, the Board finds that the Veteran also properly appealed the reduction of his rating, and as such, the issue of whether the reduction from 70 to 50 percent for PTSD is currently before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (noting that the Board’s exercise of jurisdiction over a matter is derived from the notice of disagreement). There is no prejudice to him in the Board taking jurisdiction over this issue. Although the RO did not identify the propriety of the reduction as a separate issue in the March 2019 Statement of the Case, it was addressed in the “reasons and bases” section. Moreover, the Veteran has also effectively argued he is entitled to a higher rating. See February 2018 claim for an increased rating. Therefore, the issue on appeal has been recharacterized as shown above (propriety of the reduction and entitlement to a higher rating). Pertinent regulations for consideration were provided to the Veteran in the March 2019 Statement of the Case (SOC) and will not be repeated here in full. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 1. The RO’s reduction in rating from 70 percent to 50 percent, effective March 1, 2018, was proper. In a May 2009 rating decision, the RO increased the disability rating for service-connected PTSD from 50 to 70 percent, effective April 25, 2008, under Diagnostic Code (DC) 9434-9411. In an April 2017 rating decision, the RO proposed to decrease the 70 percent evaluation to 50 percent. In the December 2017 rating decision, the RO reduced the disability rating from 70 percent to 50 percent, effective March 1, 2018, under DC 9411. The Board emphasizes that this analysis focuses on the propriety of the reduction of the Veteran’s rating, and not on entitlement to a higher rating, which is separately addressed below in the increased rating section. Given that the reduction in rating for the service-connected PTSD resulted in a reduction in the Veteran’s overall combined rating, the notice provisions of 38 C.F.R. § 3.105(e) apply. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction and mail it to the Veteran’s latest address of record. 38 C.F.R. § 3.105(e). The Veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Id. Then, a rating action will be taken to effectuate the reduction. Id. The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the Veteran of the final action expires. Id. On review, it appears that the RO complied with the procedural requirements and the Veteran does not contend otherwise. The Veteran was notified of the proposed reduction in April 2017 and was given an opportunity to submit additional evidence, and was informed about an opportunity to have a hearing. Accordingly, the Board finds the RO satisfied the procedural requirements of 38 C.F.R. § 3.105 (e). Therefore, the remaining question is whether the reduction of the disability rating was proper. In this case, the Veteran’s 70 percent rating had been in effect since April 2008. Where a rating has been in effect for five years or more, it 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 or continue the existing disability rating. Moreover, ratings for diseases 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. Moreover, even if 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. See 38 C.F.R. § 3.344 (a), (b). In determining whether the reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). However, post-reduction evidence may not be used to justify an improper reduction. In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See id. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Where VA has reduced a Veteran’s rating without observing applicable laws and regulations, such a rating is void ab initio and it will be set it aside as not in accordance with the law. Kitchens v. Brown, 7 Vet. App. 320 (1995). The Veteran underwent a VA examination in February 2017—which the Board deems to be “full and complete,” considering that it was furnished after an extensive review of all pertinent records. During that examination, the Veteran himself reported a “significant improvement in symptoms” since the April 2009 VA examination, due to effectiveness of his cognitive behavioral therapy therapies (ie. throughout which he claims that he has acquired skills, such as breathing, stop thinking, and cognitive reframing) in managing his emotions, and in particular, of his anger management. The examiner also made a statement consistent with the Veteran’s report: “he had had difficulty with anger management, including road rage, but now is effectively applying self-talk techniques to manage his anger”. He also reported not being on any psychotropic medications, but only taking over-the-counter sleep medication. Although the examiner indicated there was a remission of depression since the last examination in April 2009, the Veteran himself reported that he was experiencing non-continuous symptoms of depression about only once a month and was generally able to use cognitive techniques to improve his mood. The examiner at the time also concluded that a diagnosis of major depressive disorder no longer applied to the Veteran and diagnosed him only with PTSD. Furthermore, during the February 2017 VA examination, the Veteran reported getting along well with his coworkers and not having any difficulty doing work. In light of the above, the Board finds that a material improvement has been shown, and also concludes that the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. The Veteran’s rating was in effect for more than five years, and for diseases such as psychiatric disorders that can temporarily improve, the reduction can only be based on a single examination (such as here) if the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. That burden is met here. In particular, the evidence indicates that his cognitive behavioral therapies provide consistent and generally reliable coping mechanisms that allow improvement in the Veteran’s PTSD condition to be sustained, and the Board also highlights the Veteran’s own subjective report to the VA examiner of significant improvement since 2009. In other words, the preponderance of the evidence showed that the Veteran had improved psychiatric symptoms/condition (both in terms of the nature of and the severity of the symptoms). While he continued to have some lingering symptoms, such as sleep disturbance and social avoidance, the overall severity of his condition and the resulting impairment had improved. Based on the foregoing, the Board finds the reduction in rating for the Veteran’s service-connected PTSD was proper and warranted as of March 1, 2018, under DC 9411. Accordingly, the Veteran’s claim for restoration is denied. The benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 2. Entitlement to a higher disability rating for service-connected PTSD is denied. As noted above, in addition to challenging the reduction, the Veteran is also seeking a higher disability rating for his service-connected posttraumatic stress disorder (PTSD). The Veteran filed a claim for an increased rating in February 2018. At the time he filed his claim, the Veteran was in receipt of a 70 percent disability rating. The rating was reduced to 50 percent since March 1, 2018. Prior to March 1, 2018 As noted earlier, the Veteran was in receipt of a 70 percent disability rating prior to March 1, 2018 under Diagnostic Code (DC) 9434-9411, and this rating was still in effect when he filed his claim for an increase. The Board considered whether he was warranted a next higher rating of a 100 percent, but finds it inapplicable. Notably, at no time during this period did the Veteran manifest any symptoms comparable to those contemplated by a 100 percent rating. Initially, he did not complain he was unable to carry out any of his daily activities—in fact, he was found to be capable of engaging in daily activities, including personal hygiene. See February 2017 VA examination, see also February 2017 VA treatment records. Furthermore, at no time during this period did the Veteran exhibit symptoms comparable to gross impairment in thought processes or communication (“there is not inappropriate behavior”), persistent delusions or hallucinations, grossly inappropriate behavior, or memory loss for own occupation or own name. He also consistently denied having any thoughts of hurting self or others, and was also found to be able to manage his own financial affairs. See February 2017 VA examination, February 2017 VA treatment records. Thus, his symptoms did not rise to the level of total occupational and social impairment consistent with a 100 percent rating. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 70 percent for PTSD throughout this period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Since March 1, 2018 As addressed briefly above, the Veteran is in receipt of a 50 percent rating, since March 1, 2018, under DC 9411. The Board has considered whether he is warranted a next higher rating of a 70 percent for any time period, but finds it inapplicable. First, the evidence does not show that the Veteran manifests any symptoms comparable to those contemplated by the criteria for a 70 percent evaluation since March 1, 2018, such as intermittently illogical speech, suicidal ideation, neglect of appearance and hygiene, impaired impulse control, or spatial disorientation. He has consistently been found not to manifest any of these symptoms. See December 2019 VA examination, March 2018 VA examination, June 2019 VA treatment records, August 2018 VA treatment records. With regards to any symptoms of “difficulty in establishing and maintaining effective work and social relationships” and “difficulty in adapting to stressful circumstances,” the Veteran reported that his current marriage is going well (see December 2019 VA examination) and that he has had no issues with the job the past three years (field engineer at a company), besides one email conflict where he was reported as being rude. He has also projected an optimistic outlook on his life (ie. he noted that there is a room for progression at his job, and he is looking into getting a remote work position so he can relocate with his wife to Wyoming). See December 2019 VA examination. At most, the Veteran himself reported only mild disruption in his work setting (ie. as due to his insomnia and fatigue, transient problems with lateness), but he otherwise stated that his performance at work is good and his transient problems with concentration and memory are not noted to be interfering with his performance at work. See March 2018 VA examination. To the extent that he reported irritability, such was consistently not found to reach the level of “impaired impulse control (such as unprovoked irritability with periods of violence),” and manifests only when triggered (ie. not an unprovoked irritability) (see March 2018 VA examination, he has been more irritable/argumentative/verbally aggressive this month, because March is an anniversary of Operation Anaconda). The Veteran was noted to have an improved condition and is now capable of managing his anger by using his newly acquired cognitive techniques (see March 2018 VA examination). Last, but not least, although there are indications of his avoiding any social activities and hypervigilance, there is no indication of any near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. See March 2018 VA examination (notes no current depression, but has some mild transient episodes), August 2018 VA treatment records, February 2017 VA treatment records, December 2019 VA examination (able to maintain daily living including personal hygiene, self-care, and household chores, has been able to maintain occupational pursuit, able to manage his finances). The Board has also considered whether an assignment of a 100 percent schedular rating is appropriate. However, the Veteran has never exhibited symptoms comparable to gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; memory loss for own occupation or own name. Thus, his symptoms do not rise to the level of total occupational and social impairment of a 100 percent rating. See December 2019 VA examination, March 2018 VA examination, June 2019 VA treatment records, August 2018 VA treatment records. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran’s claim for a rating in excess of 50 percent throughout this period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.