Citation Nr: 20021949 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-16 023 DATE: March 30, 2020 ORDER Entitlement to restoration of the 50 percent disability rating for service-connected posttraumatic stress disorder (PTSD), effective March 1, 2015 to December 19, 2019, is granted. REMANDED Entitlement to an increased rating greater than 50 percent PTSD is remanded. FINDING OF FACT The evidence of record does not indicate that the Veteran’s PTSD had materially improved on a sustained basis. CONCLUSION OF LAW The criteria for restoration of the 50 percent rating for PTSD, effective March 1, 2015 to December 19, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marine Corps from February 1991 to February 1995, and again from April 20, 1998 to April 19, 2002; the Veteran then served in the Air Force from September 2002 to November 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which reduced the Veteran’s rating for his service-connected PTSD from 50 percent to 30 percent, effective March 1, 2015. The Veteran disagreed with the reduction, as well as the assigned rating. During the pendency of the appeal, the agency of original jurisdiction (AOJ) awarded an increased rating from 30 to 50 percent, effective December 20, 2019. For the reasons discussed below, the Board is restoring the 50 percent rating, effective March 1, 2015 to December 19, 2019, and remanding the question as to whether a rating higher than 50 percent is warranted at any time during the period under review. Restoration The Veteran has asserted that his PTSD did not improve and that the reduction in his disability rating from 50 to 30 percent was not appropriate. In the December 2014 rating decision, the Veteran’s rating for his PTSD was reduced from 50 percent to 30 percent, effective March 1, 2015, based on February 2014 and September 2014 VA examination reports. The February 2014 VA examiner indicated that the Veteran’s PTSD manifested in occupational and social impairment due to mild or transient symptoms. Upon reassessment in September 2014, the VA examiner indicated that the Veteran’s level of occupational and social impairment could not be determined to a reasonable degree of professional certainty, due to objectively assessed response bias in the examination, and the absence of corroborative information regarding the Veteran’s reported functioning from impartial third parties. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344 (a) and (b). However, these provisions do not apply in this case because the Veteran’s 50 percent rating was in place for less than 5 years when the reduction took effect. Additionally, it is well established that VA cannot reduce a veteran’s disability evaluation without first finding, inter alia, that an improvement has actually occurred in the veteran’s service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Care must be taken 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. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22. Finally, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). After reviewing the evidence, the Board finds that the weight of the evidence is against a finding of actual improvement in the Veteran’s service-connected PTSD. As noted above, a February 2014 VA examiner opined that the Veteran’s PTSD was productive of occupational and social impairment due to mild or transient symptoms. While this is generally the criteria for a 10 percent rating, the evidence does not reflect the Veteran’s PTSD actually improved. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A reliable assessment regarding occupational and social impairment could not be made at the subsequent September 2014 examination, but the examiner did note the PTSD symptoms that the Veteran identified were “moderate” or “more severe” symptoms during the past month. Indeed, the examiner affirmatively checked all boxes indicating the presence of all PTSD criteria, to include Criterion G, affirming that the Veteran’s PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. It was noted at that time that the Veteran also experienced irritable behavior and angry outbursts with little to no provocation, reckless or self-destructive behavior, hypervigilance and exaggerated startle response, among several other PTSD characteristics. Subsequent VA treatment reports note dysthymic mood, with complaints of being depressed and unable to “get back into life,” as well as reports of associated anxiety, irritability and crowd avoidant behaviors. See an August 2, 2016 VA Mental Health Nurse Practitioner Note. The Veteran’s PTSD was recently reassessed by VA in January 2020, and based on those findings (which include an assessment that PTSD causes occupational and social impairment with reduced reliability and productivity), the AOJ assigned an increased rating back to 50 percent, effective December 20, 2019. This suggests that there was no sustained improvement in the Veteran’s condition. Given the above, the Board finds that the reduction from 50 percent to 30 percent for the Veteran’s service-connected PTSD, effective March 1, 2015 to December 19, 2019, was improper. Accordingly, the 50 percent disability rating for PTSD is restored for that time period. REASONS FOR REMAND Entitlement to an increased rating greater than 50 percent for PTSD is remanded The Board notes that there may be outstanding VA treatment records that are pertinent to the Veteran’s claims on appeal. Specifically, during his January 2020 PTSD examination, the Veteran indicated that he received ongoing VA mental health treatment, including treatment from nurse practitioner, M.C., and Licensed Clinical Social Worker, H.R.. See January 2020 VA Examination Report. Although the record includes treatment notes through October 19, 2015 for H.R., and through August 3, 2016 for M.C., it does not appear that more recent records from these providers have been obtained. The matter is therefore REMANDED for the following action: 1. Associate with the claims file all VA treatment records dated from October 19, 2015, to the present, to specifically include all records of care from nurse practitioner, M.C., and Licensed Clinical Social Worker, H.R.. 2. Give the Veteran additional opportunity to submit or identify any outstanding treatment records pertinent to the issue on appeal. 3. Thereafter, and after any further development deemed necessary, the issue on appeal should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.