Citation Nr: A20007350 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 191015-38121 DATE: April 30, 2020 ORDER The rating reduction for posttraumatic stress disorder (PTSD) with alcohol abuse from a 70 percent rating to a 50 percent rating effective December 1, 2019 was improper; therefore, the appeal to restore the 70 percent rating of the Veteran's PTSD back to December 1, 2019 is granted. REMANDED Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. In a September 2019 rating decision, the Regional Office (RO) reduced the rating for the Veteran’s PTSD from 70 percent disabling to 50 percent disabling, effective December 1, 2019. 2. At the time of the September 2019 rating decision, the evidence of record did not indicate improvement in the Veteran’s ability to function under the ordinary conditions of life and his symptoms as contemplated in the Diagnostic Code (DC) were comparable to the time of the initial rating decision. CONCLUSIONS OF LAW The reduction of the rating for PTSD from 70 percent to 50 percent, effective December 1, 2019 was improper, and the 70 percent rating is restored as of that date. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, 4.2, 4.71a, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to March 2004 with service in the Persian Gulf. These matters are before the Board of Veterans’ Appeals (Board) on appeal from September 2019 and October 2019 rating decisions by the Department of Veterans Affairs (VA) RO. 1. The rating reduction for PTSD with alcohol abuse from 70 percent to 50 percent effective December 1, 2019 was improper; therefore, the appeal to restore the 70 percent rating of the Veteran's PTSD is warranted. Legal Criteria 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. Dofflemyer v. Derwinski, 2 Vet. App. 277, at 281-82 (1992). Care must be taken, however, 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. In addition, it must be determined that material improvement in a disability has actually occurred, and that any improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13 (2018); see also Brown v. Brown, 5 Vet. App. 413, 420-22 (1993). In this case, at the time of the December 2019 reduction, the Veteran’s 70 percent rating for PTSD had been in place less than five years (effective date of December 25, 2015). Accordingly, the provisions of 38 C.F.R. § 3.344(a) and (b) (protecting ratings that have been in place for five years or more) do not apply and, instead, a re-examination disclosing improvement in the disability would warrant a reduction in rating. 38 C.F.R. § 3.344(c). However, the burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. It is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420; see 38 C.F.R. § 4.1. Similarly, “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” 38 C.F.R. § 4.2. VA must also ensure that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Factual Background The Veteran attended a June 2018 VA examination for his PTSD. In that examination, the examiner noted 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. The examiner also noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. The examiner provided no opinion whether there was improvement in the Veteran’s disability since his last evaluation. An October 2018 rating decision proposed reducing the Veteran’s PTSD rating because the Veteran’s symptoms more closely approximate the criteria for 50 percent. In a November 2018 VA medical treatment record submitted by the Veteran, his treating psychologist since October 2016 opined that she had not seen major improvement in the Veteran’s PTSD condition. She further stated that the Veteran continues to struggle with severe PTSD. The September 2019 rating decision on appeal stated the reason for the reduction was that there was no continuity of symptoms from the Veteran’s psychotherapy sessions. Analysis At the outset, the Board points out that 38 C.F.R. § 3.105(e) sets forth certain procedural requirements for reductions in disability compensation ratings. Generally, a reduction is void ab initio (invalid from the start) if the RO reduces a Veteran’s disability rating without following these requirements. See Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). The RO has substantially complied with the notice requirements. However, here, the evidence does not show that the Veteran’s PTSD abated such that improvement in the ability to function under ordinary conditions of life and work were realized at the time of the reduction. The June 2018 examination failed to demonstrate a material improvement in the Veteran’s PTSD such that would warrant a reduction in his rating. In fact, the examiner noted suicidal ideation as one of the Veteran’s primary symptoms. Suicidal ideation is one of the most serious symptoms contemplated by a 70 percent disability rating for psychiatric conditions. Additionally, the Veteran’s treating psychologist noted no material improvement in the Veteran’s PTSD since he began treatment. Upon review of this evidence, the Board finds that, at that the time of the reduction, it is clear that the evidence did not show actual, ascertainable material improvement of the Veteran’s PTSD that reflects an improvement in his ability to function under the ordinary conditions of life. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the reduction of the rating for PTSD was not proper. As such, the 70 percent rating for PTSD is restored, effective December 1, 2019, the date of the reduction. REASONS FOR REMAND 1. Service connection for obstructive sleep apnea is remanded. In an October 2019 VA examination for his OSA, the examiner diagnosed OSA. The examiner also opined that the Veteran’s OSA was less likely than not related to his PTSD with alcohol abuse. The examiner reasoned that there is no physiologic or anatomic correlation between OSA and PTSD. Further, the examiner stated that there is a close statistical correlation, but no adequate explanation of causation. The examiner fails to provide an opinion whether the Veteran’s PTSD aggravated his OSA. The examiner fails to address these aspects of the Veteran’s claims file that reasonably raises service connection on a direct basis. See January 2004 separation examination. Therefore, the issue of service connection of OSA is remanded to correct a duty to assist error that occurred prior to the October 2019 rating decision on appeal. The matters are REMANDED for the following action: 1. The AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his obstructive sleep apnea (OSA). The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the OSA was either caused or aggravated by the Veteran’s service-connected PTSD? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s OSA is related to, caused by, or aggravated by his active service, to include in the Persian Gulf War? The Board draws the attention of the examiner to the Veteran’s January 2004 separation examination, wherein, the Veteran complained of breathing problems and that when he sleeps at night, he coughs a great deal and produces phlegm. The examiner is reminded that the Veteran is competent to provide information about observable symptoms and events. The examiner should assume, for the purposes of the opinions, that the Veteran’s reports are both accurate and credible. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) S. Reed Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.