Citation Nr: 20017590 Decision Date: 03/06/20 Archive Date: 03/06/20 DOCKET NO. 15-00 299 DATE: March 6, 2020 ORDER As the reduction in the disability rating from 70 percent to 10 percent for the Veteran's service-connected posttraumatic stress disorder (PTSD) was not proper, restoration of the 70 percent disability rating is granted. Entitlement to service connection for erectile dysfunction as secondary to a service-connected Traumatic Brain Injury (TBI) is granted. Entitlement to Special Monthly Compensation (SMC) for loss of use of a creative organ is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for residuals of a TBI is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine with levoscoliosis and strain is remanded. FINDINGS OF FACT 1. The decision to reduce the Veteran’s service-connected PTSD from 70 percent to 10 percent, effective January 1, 2019, was not proper, as the Agency of Original Jurisdiction (AOJ) failed to review the entire recorded history of the condition and consider whether the evidence demonstrated material improvement reasonably certain to continue under the ordinary conditions of life. 2. The evidence is at least in equipoise as to whether the Veteran’s erectile dysfunction was caused or aggravated by his service-connected TBI. 3. Resolving reasonable doubt in favor of the Veteran, he has full functional loss of use of his creative organ. CONCLUSIONS OF LAW 1. As the AOJ’s reduction of the disability rating for the Veteran’s service-connected PTSD from 70 percent to 10 percent, effective January 1, 2019, was not in accordance with law, the criteria for restoration of the 70 percent rating have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.105(e), 3.159, 4.130, DC 9411. 2. The criteria for service connection for erectile dysfunction secondary to TBI have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to SMC based on loss of use of a creative organ have been met. 38 U.S.C. § 1114(k); 38 C.F.R. §§ 3.102, 3.350(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January to May 2009 and from July 2010 to August 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of March 2012 and October 2018 rating decisions of a regional office (hereinafter AOJ) of the Department of Veterans Affairs (VA). In part, the March 2012 rating decision granted service connection for PTSD, TBI and degenerative arthritis of the thoracolumbar spine with levoscoliosis and strain, which were assigned initial ratings, respectively, of 70 percent, 10 percent, and 10 percent. The Veteran appealed these initial disability ratings, which the Board confirmed in a June 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC), and in September 2019 the parties agreed to a Joint Motion for Remand (JMR) before CAVC. The JMR agreed that the Board’s decisions regarding flareups of the Veteran’s spine and overlapping PTSD and TBI symptoms lacked adequate reasons and bases or were based on inadequate medical opinion. It also noted that the issue of entitlement to service connection for erectile dysfunction and SMC for loss of use of a creative organ were reasonably raised by the record and should have been considered in the Board’s decision. At the request of all parties, CAVC vacated the prior decision and directed the Board to readjudicate the claim in a manner consistent with the JMR. The Board also denied an initial rating in excess of 70 percent for PTSD. In the CAVC JMR, the appellant expressly abandoned his appeal of this claim. See Pederson v. McDonald, 27 Vet. App. 276, 283 (2015) (en banc). Additionally, in a September 2017 rating decision, the AOJ proposed a reduction in the Veteran’s disability rating for PTSD from 70 percent to 10 percent. This reduction was confirmed in an October 2018 rating decision and became effective January 1, 2019. The Veteran perfected a timely appeal of the propriety of this reduction to the Board. 1. Restoration of the 70 percent rating for major depressive disorder A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413, 420 (1993). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1. If an examination report does not contain sufficient detail, or the diagnosis is not supported by the findings on the examination report, it must be returned as inadequate for rating purposes. 38 C.F.R. § 4.2. When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examinations or in use of descriptive terms. 38 C.F.R. § 4.13. Finally, it must be considered that the basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. As to the propriety of the reduction, for reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Board is required to establish, by a preponderance of the evidence, that a rating reduction on appeal is warranted. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Additionally, 38 C.F.R. § § 3.344(a) and (b) govern reductions for ratings in effect for five years or more. For these claims, VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). Upon review of the evidence, the Board finds that the reduction in the rating from 70 percent to 10 percent for the Veteran’s service-connected PTSD under Diagnostic Code (DC) 9411 was not proper, and restoration of the 70 percent rating is therefore warranted. To that end, the Board recognizes that, in implementing the proposed rating reduction, the AOJ weighed some of the evidence of record and found that the Veteran’s PTSD no longer met the criteria for a 70 percent rating under DC 9411. However, review of the September 2017 and October 2018 rating decisions, as well as the April 2019 Statement of the Case (SOC) reflect that the AOJ failed to make a specific determination that there was an actual improvement in the Veteran’s ability to function under the ordinary conditions of work and life, despite contending his condition improved due to a negative depression screening. See 38 C.F.R. §§ 4.10, 4.13. The AOJ’s failure to make such a determination in this case renders the reduction improper. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a reduction case the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In fact, the Court has consistently held that when VA reduces a Veteran’s disability rating without following the applicable regulations, the reduction is void ab initio and will be set aside. Greyzck v. West, 12 Vet. App. 288, 292 (1999); Hayes v. Brown, 9 Vet. App. 67, 73 (1996); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO 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. See Dofflemyer, 2 Vet. App. 277, 281-82 (1992). In this case, as noted in the April 2019 SOC, the AOJ only took into account the Veteran’s “latest mental health treatment note of May 1, 2015, which only supplies a depression inventory index check and no other symptoms” when substantiating and confirming the proposed reduction. With regards to PTSD symptoms, the original rating decision proposing the reduction noted only that the Veteran’s condition was currently being controlled by medication. However, VA treatment records indicate the Veteran underwent a psychological assessment in August 2016 which indicated his PTSD was not being clinically treated and which posited that the Veteran was using opioid painkillers, prescribed for his physical ailments, to “manage the psychological discomfort of his untreated PTSD.” The VA clinical social worker also noted that the Veteran suffered from chronic poor sleep with intermittent nightmares. A May 2015 VA examiner noted the Veteran exhibited “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood,” due to his PTSD. Finally, in July 2017 correspondence the Veteran chronicled his PTSD symptoms and stated that they caused him to refuse to leave the house for months at a time unless absolutely necessary. In light of this evidence of record, the Board finds that the AOJ failed to base the reduction decision on a review of the entire recorded history of the condition and adequately determine whether any improvement in the Veteran’s condition actually reflects improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See Kitchens, 7 Vet. App. at 324 (1995); Brown, 5 Vet. App. at 420-421 (1993). Such an omission is error and not in accordance with the law. Greyzck, 12 Vet. App. at 292; Hayes, 9 Vet. App. at 73; Kitchens, 7 Vet. App. at 324. Accordingly, the 70 percent rating assigned for PTSD under DC 9411 is restored. Service Connection 2. Entitlement to service connection for erectile dysfunction as secondary to service-connected TBI Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310 The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that “the tie goes to the runner.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran was granted service connection for a TBI and residuals in a March 2012 rating decision. During a September 2011 VA examination, the Veteran denied experiencing erectile dysfunction. He underwent a VA examination for his TBI and residuals in July 2015. The examiner noted that the Veteran experienced an inservice TBI in 2011, and currently suffered from several residuals attributable to the TBI. These residuals included hearing loss/tinnitus, headaches, a mental disorder and erectile dysfunction. The examiner noted that the Veteran’s erectile dysfunction was resolving but that he still had to occasionally use Viagra. Since evidence of erectile dysfunction secondary to the Veteran’s TBI has been reasonably raised by the record, the Board will consider a claim of service connection for this condition as part of his TBI claim. Upon review of the record, the evidence is at least in equipoise that the Veteran has a current disability of erectile dysfunction and that this disability is proximately due to his service-connected TBI. Therefore, the Board will grant the claim of service connection for erectile dysfunction, secondary to his TBI. 3. Entitlement to SMC for loss of use of a creative organ Similarly, the record has reasonably raised a claim for entitlement to SMC for loss of use of a creative organ since the Veteran has been granted service connection for erectile dysfunction herein. VA provides SMC if a Veteran, as a result of service-connected disability, has suffered the anatomical loss or loss of use of a creative organ. 38 U.S.C. § 1114(k). SMC based on loss of use of a creative organ can also be granted based on erectile dysfunction. 38 C.F.R. § 3.350(a)(1)(ii). During the July 2015 VA examination, the examiner noted that the Veteran’s erectile dysfunction was “resolving,” but that he still had to occasionally use Viagra. The record is silent for any information regarding the Veteran’s erectile dysfunction since the July 2015 VA examination. The Board resolves this reasonable doubt in favor of the Veteran and, in light of the grant of service connection for erectile dysfunction, finds that SMC for loss of use of a creative organ is warranted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for residuals of a TBI is remanded. The previous Board decision found that the Veteran’s disorientation symptoms were inextricably intertwined with his 70 percent rating for PTSD and it could not assign a higher rating for such symptoms as related to TBI. However, according to the terms of the JMR, the Board did not adequately address whether the Veteran’s symptoms of disorientation were clearly separable from his PTSD symptoms. See 38 C.F.R. § 4.124a, DC 8045, n.1; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998). The JMR correctly notes that neither the Veteran’s March 2012 nor May 2015 VA examinations listed disorientation as a symptom of the Veteran’s PTSD, or as an overlapping symptom between PTSD and TBI. The May 2015 VA examiner noted the Veteran experienced mild impairment of spatial orientation. In July 2017 correspondence, the Veteran alleged worsening symptoms, possibly due to both his TBI and PTSD. The Board recognizes that the Veteran has not been afforded a VA examination for the symptoms of his TBI or PTSD since May 2015, and there is limited clinical evidence relating to these conditions available in the record. Therefore, the Board finds that the previous examinations are too remote to properly evaluate the disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v Brown, 6 Vet. App. 377, 381 (1994). As such, a new and more contemporaneous VA examination is warranted. 2. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the thoracolumbar spine with levoscoliosis and strain is remanded. The JMR states that the Board erred when it determined the evidence did not show that the Veteran had any greater impairment of his back during flareups. In making this determination, the Board relied upon a February 2012 medical examination that failed to comply with the requirements set forth in Sharp v. Shulkin, which holds that not only must an examiner provide an opinion on whether additional functional loss is caused by flareups, but also cannot avoid providing such an opinion because of “mere speculation” unless he or she explains why. 29 Vet. App. 26, 32 (2017). Additionally, the JMR indicated the Board failed to address whether the Veteran’s reported need to rest until his pain subsides during flareups is the equivalent of limitation of motion contemplated by a higher rating. The Board notes that the last VA examination of the Veteran’s thoracolumbar spine was in September 2013. Since that examination, the Veteran alleged worsening of his condition in his January 2015 Form 9, stating that he cannot stand up for more than 15 minutes without sitting down to rest his back. Under these circumstances, an additional VA examination is necessary to determine the current severity of his service-connected back disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). This examination should comply with the requirements of Sharp in order to address the concerns stated in the JMR and to allow the Board to make a fully informed decision on the matter. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records since September 2018 and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity and manifestations of his service-connected TBI and residuals. The claims file should be available to the examiner for review in connection with the examination. All appropriate testing should be conducted, including the TBI template. The VA examiner is asked to specify which symptoms are due to the Veteran’s TBI and which are due to his service-connected PTSD, and to identify any overlapping of manifestations. The examiner should specifically evaluate whether the Veteran’s disorientation symptoms are attributable to TBI rather than PTSD. Any opinion expressed by the examiner should be accompanied by complete rationale. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected thoracolumbar spine disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flareups or repetitive use, and if so, the examiner must estimate range of motion during flareups or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flareups or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flareups or repetitive use, specifically his statement that when he would “move the wrong way” he had to rest until pain subsided. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: active motion and passive motion both in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. The examiner should also identify any neurologic manifestations of service-connected thoracolumbar spine disability. 4. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.