Citation Nr: 20029718 Decision Date: 04/28/20 Archive Date: 04/28/20 DOCKET NO. 15-25 545 DATE: April 28, 2020 ORDER The reduction in rating for service-connected posttraumatic stress disorder (PTSD), effective April 1, 2015, was proper. FINDINGS OF FACT 1. At the time of the reduction, a 50 percent rating for the Veteran’s had been in effect since June 9, 2010, less than 5 years. 2. At the time of the reduction, the evidence of record revealed the Veteran’s PTSD condition had sustainable improvement of symptoms that more closely approximates a 30 percent rating. CONCLUSION OF LAW The criteria for the reduction in rating for service-connected PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1, 4.2, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 2007 to June 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Paul, Minnesota. Rating Reductions There are specific procedural requirements applicable to rating reductions. If a reduction in the evaluation of a disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of the compensation payments currently being made, the Agency of Original Jurisdiction (AOJ) must issue a rating decision proposing the reduction and setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). The AOJ must also notify the beneficiary that he or she will be given 60 days to present evidence to show that compensation payments should be continued at the present level; as well as, the beneficiary must be notified as to the right to a predetermination hearing. Id. Additionally, 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 beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e), (i). For ratings that have been in effect for five years or more, VA regulations contain certain protections in order to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344(a)-(c). In this case, the relevant evaluation was in effect for less than 5 years, and the aforementioned regulations are inapplicable. However so, regardless of whether the 5-year threshold is met, a VA rating decision must be based upon review of the entire history of the Veteran’s disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting any such change are based upon thorough examinations. 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, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in a rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) as required. See Brown, 5 Vet. App. At 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. Whether the reduction in rating for service-connected posttraumatic stress disorder (PTSD) was proper. As an initial matter, the Board notes that the AOJ issued a rating decision in August 2014, which proposed to reduce the Veteran’s rating for his service-connected PTSD from 50 percent to 30 percent. In August 2014, the AOJ sent the Veteran an accompanying notice letter informing him of the proposal to reduce the rating assigned, and his right to a personal hearing. Additionally, the Veteran was provided with the reasons for the proposed reduction, and informed of the requisite 60-day time period for receipt of additional evidence to support the continuance of his rating, otherwise the rating would be reduced on the first day of the third month following notice of the final decision. Based upon this, the Board finds that VA has complied with the notice procedures under 38 C.F.R. § 3.105(e). For the basis of the reduction of the evaluation for the Veteran’s PTSD, the AOJ relied upon the April 2014 VA examination, where the examiner noted the Veteran’s symptoms of depressed mood and anxiety and concluded that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. In January 2015, the AOJ finalized the proposed reduction to a 30 percent rating, effective April 1, 2015. The AOJ indicated that the Veteran failed to submit any evidence to support a continuation of a rating higher than a 30 percent disability level. Based on the evidence of record, the Board finds that the reduction of the Veteran’s rating for his PTSD was proper. The record reflects that the Veteran’s condition, originally rated based on August 2010 and September 2010 VA examinations, revealed symptoms that more closely approximated a 50 percent evaluation based on moderate difficulty in social, occupational, and school functioning. Subsequent review of the claims file for the period of June 2012 to November 2012 reveals additional evidence, to include another VA examination and VA treatment records, that reflects PTSD symptoms (irritability and anger outbursts, impaired impulse control, difficulty establishing and maintaining effective work/social relationships, difficulty in adapting to stressful circumstances, easily startled, and difficulty concentrating) to continually support a 50 percent evaluation, and arguably a higher 70 percent evaluation. However, after this time frame, the Veteran’s PTSD symptoms have shown significant improvement, with milder symptoms (less panic attacks, anxiety, difficulty falling asleep/sleep disturbances, mild memory loss, depressed mood, nervousness, low energy/mood, nightmares, and problems with concentration) reflective of a rating that more closely approximates less than 50 percent. Additionally, while the Board must focus on evidence of record when the reduction was effectuated, evidence reviewed subsequent to this time frame (which the Board may consider in the context of whether improvement actually occurred), further substantiates actual improvement with symptoms limited to a singular panic attack, sleep disturbances/chronic sleep impairment, anxiety, nightmares, hypervigilance, depressed mood, mild irritability, and feelings of detachment; with a July 2016 VA examination concluding that the Veteran’s symptoms reveal occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. While the Board acknowledges the Veteran’s July 2015 statement that he experiences panic attacks several times a week (and sometimes daily) that lasts throughout the day, to which he is taking medications for control/relief, the Board finds this evidence to be heavily outweighed by the actual objective evidence of record that reflects the Veteran’s noted history of panic attacks “experienced daily” in 2013, with the last known treatment of a singular panic attack in June 2015. Therefore, based on the above, the Board concludes that the material and probative evidence of record, which demonstrates a clear and undisputable shift in the Veteran’s PTSD condition to that of being sustained improvement, supports that the reduction was proper. Accordingly, the reduction of the Veteran’s service-connected PTSD to a 30 percent rating, effective April 1, 2015, is warranted; and the claim is denied. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § § 5107 and 38 C.F.R. § § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). The appeal is denied. AMANDA G. ALDERMAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.