Citation Nr: 20044483 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 14-23 497 DATE: July 2, 2020 ORDER As the reduction of the Veteran’s disability rating for service-connected posttraumatic stress disorder (PTSD), with alcohol use disorder, from 100 percent to 70 percent, effective November 1, 2017, was not proper, restoration of the 100 percent rating is granted. Special monthly compensation (SMC), pursuant to 38 U.S.C. § 1114(s), is granted effective November 1, 2017, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. 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). 2. As of November 1, 2017, the Veteran has one service-connected disability rated as 100 percent disabling with other service-connected disabilities independently resulting in a at least a combined 60 percent rating. CONCLUSIONS OF LAW 1. The reduction of the rating for service-connected PTSD with alcohol use disorder from 100 percent to 70 percent, effective November 1, 2017, was improper, and the criteria for restoration of the 100 percent disability rating are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.343(a). 2. The criteria for SMC under 38 U.S.C. § 1114(s) are met as of November 1, 2017. 38 U.S.C. §§ 1114(s), 1155, 5107(b); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1988 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, reduced the Veteran’s 100 percent rating for PTSD to 70 percent and discontinued the Veteran’s SMC at the statutory housebound rate, both effective November 1, 2017. In November 2017, the Veteran’s filed a timely notice of disagreement (NOD) with respect to the reduction of the disability rating for PTSD. The RO issued a statement of the case (SOC) in February 2018, and the Veteran timely filed a substantive appeal, on VA Form 9, in March 2018. Although the Veteran also initially appealed the reduction of a disability rating for left knee instability in his November 2017 NOD, he specifically excluded that issue from his March 2018 VA Form 9. Thus, the issue is not before the Board. 1. Propriety of the reduction of the disability rating for PTSD. 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. Additionally, 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. 8 C.F.R. § 3.105(e), (i). Here, the RO met the notification requirements under 38 C.F.R. § 3.105 based on the July 2016 rating decision and July 2016 notification letter. Additional procedural requirements are required where, as here, the rating reduction involves a total disability rating. See 38 C.F.R. § 3.343(a). 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, explaining 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.” Ternus v. Brown, 6 Vet. App. 370, 376 (1994). 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 [in the evaluation criteria]” Id. Accordingly, 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 comparable to the facts in the instant appeal. Here, the RO issued a proposed rating reduction in June 2016 that relied on a single VA examination conducted in May 2016. Importantly, the proposed rating decision did not compare the May 2016 psychiatric examination with the most recent, prior examination conducted in March 2015. Id. In comparison, the May 2016 psychiatric examination showed an overall similar symptomatology with that of the March 2015 examination. While the May 2016 examination report does not specifically include the symptoms of gross impairment in thought processes or communication and difficulty in adapting to stressful circumstances, including work or a worklike setting, which were listed in the March 2015 examination, the description of the Veteran’s overall symptomatology was similar, and no material improvement in the Veteran’s PTSD was noted. Id. The examiner maintained that the Veteran continued to have issues with his PTSD and alcohol use disorder. Id. Overall, judgments of the Veteran’s PTSD between the two examinations was similar, as in Ternus. Thus, the Board finds that where the AOJ relied on a single examination report without comparing it to the most recent prior examination or evidence of record, and without reference to or compliance with the procedural requirements of 38 C.F.R. § 3.343(a), and where the record does not illustrate clear error in the assignment of a 100 percent rating, the reduction in the Veteran’s 100 percent disability rating for his PTSD was not proper. Accordingly, this procedural error renders the rating reduction in this appeal 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 November 1, 2017, is warranted. 2. SMC at the housebound rate. The cessation of SMC based on statutory housebound status under 38 U.S.C. § 1114(s) in the rating decision on appeal relied on the Veteran no longer meeting the schedular criteria, because he no longer had a single disability rated 100 percent disabling following a reduction in the rating for service-connected psychiatric disability. Notably, the Board is restoring that 100 percent rating for PTSD and the Veteran’s service-connected disabilities other than PTSD have at least a combined rating of 60 percent, effective November 1, 2017. Therefore, the criteria for SMC under 38 U.S.C.§ 1114(s) are met, effective November 1, 2017. Michael L. Wilson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Modesto 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.