Citation Nr: 20034828 Decision Date: 05/19/20 Archive Date: 05/19/20 DOCKET NO. 20-14 623 DATE: May 19, 2020 ORDER The reduction to 70 percent being improper, restoration of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD), effective January 1, 2018, is granted. FINDING OF FACT The notification of the proposed reduction was improper because it relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a). CONCLUSION OF LAW The reduction of the rating for service-connected PTSD from 100 percent to 70 percent, effective January 1, 2018, was improper, and restoration of the 100 percent disability rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.343(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to June 1987, for a period in May 1992, and from February 2003 and September 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 final rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran’s 100 percent rating for PTSD to 50 percent, effective January 1, 2018. The agency of original jurisdiction (AOJ) increased the 50 percent rating to 70 percent in its February 2020 statement of the case (SOC). Under the provisions of 38 C.F.R. § 3.105, when reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. A Veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). VA regulations require that the predetermination hearing be conducted by VA personnel who did not participate in the proposed adverse action. 38 C.F.R. § 3.105(i). If a pre-determination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. Id. Additional procedural requirements are required where the rating reduction involves a total disability rating. See 38 C.F.R. § 3.343(a). Here, the PTSD restoration concerns a total disability rating and, thus, the provisions of 38 C.F.R. § 3.343(a) apply. That regulation provides that a total disability rating when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability, will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, that is, while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). The Court of Appeals for Veterans Claims (Court) held that § 3.343(a) is a procedural requirement. Ternus v. Brown, 6 Vet. App. 370, 376 (1994). The Ternus Court explained that § 3.343(a) is an “initial procedural burden regarding proposed reductions of total disability ratings based on severity [that] falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran’s 100% disability rating.” Id. (emphasis added). In Ternus, the RO proposed a rating reduction relying on a single examination “without comparing it to the most recent VA psychiatric evaluation and without reference to or compliance with the procedural requirements of” § 3.343(a). Id. The Court found that “[h]ad the RO compared the two examinations at the time of its proposed rating reduction, it would have been clear under the applicable regulation that there was no material improvement given the similar overall judgments under Axis V.” Id. The Board notes that, in Ternus, Axis V contained an assessment of overall functioning known as a GAF score. The Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. See Golden v. Shulkin, 2018 U.S. App. Vet. Claims LEXIS 202 (decided February 23, 2018). Rather, the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). Thus, VA’s initial procedural burden in reductions of total disability ratings, prior to the notice of the proposed rating reduction, requires a showing of material improvement under the ordinary conditions of life from a previous rating examination that continued the Veteran’s total disability rating. Material improvement is further narrowed in § 3.343(a) as described above. The facts in Ternus are similar to the facts here. Here, the RO issued a proposed rating reduction in September 2016 that relied on a single VA examination from the month prior and treatment records in the two years prior. See September 2016 proposed rating decision. Importantly, the proposed rating decision did not compare the August 2016 psychiatric examination with the most recent prior examination, April 2014. Id. In comparison, the August 2016 psychiatric examination showed an overall similar symptomatology with that of the April 2014 examination. Compare August 2016 VA examination report with April 2014 VA examination report. The August 2016 examination report lists symptoms separately in its remarks section that otherwise appear congruent with the April 2014 VA examination. Id. Thus, the Board finds that the AOJ relied on a single examination without comparing it to the most recent prior examination and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a). Moreover, the record does not illustrate clear error in the assignment of a 100 percent rating. Accordingly, this procedural error renders the rating reduction void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999); Wilson v. West, 11 Vet. App. 383, 386-87 (1998). Therefore, restoration of the 100 percent disability rating for PTSD as of January 1, 2018, is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.