Citation Nr: 21000922 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-45 507 DATE: January 6, 2021 ORDER The reduction of the disability rating for headaches from 30 percent to 0 percent, effective October 1, 2013, was improper, and the 30 percent evaluation is restored. The reduction of the disability rating for posttraumatic stress disorder (PTSD) from 70 percent to 50 percent, effective August 1, 2015, was improper, and the 70 percent evaluation is restored. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The RO issued a January 2013 rating decision proposing the reduction in evaluation of service-connected headaches from 30 percent to 0 percent and allowed the Veteran 60 days to respond. 2. In a July 2013 rating decision, the RO reduced the headaches rating from 30 percent to 0 percent, effective October 1, 2013. 3. Resolving all reasonable doubt in the favor of the Veteran, throughout the appeal period, the Veteran’s service-connected headaches disorder is most appropriately characterized as prostrating attacks occurring on an average once a month over the last several months. 4. The RO issued a February 2015 rating decision proposing the reduction in evaluation of service-connected PTSD from 70 percent to 50 percent and allowed the Veteran 60 days to respond. 5. In a May 2015 rating decision, the RO reduced the PTSD rating from 70 percent to 50 percent, effective August 1, 2015. 6. Resolving all reasonable doubt in favor of the Veteran, throughout the appeal period, the Veteran’s service-connected PTSD is most appropriately characterized as occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood. CONCLUSIONS OF LAW 1. The reduction of the evaluation for service-connected headaches from 30 percent to 0 percent, effective October 1, 2013, was improper; the restoration of a 30 percent evaluation is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.124a, Diagnostic Code (DC) 8199 (2014). 2. The reduction of the evaluation for service-connected PTSD from 70 percent to 50 percent, effective August 1, 2015, was improper; the restoration of a 70 percent evaluation is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.130, DC 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 2006 to November 2007 and from April to September 2008. These matters come to the Board of Veterans’ Appeals (Board) on appeal from July 2014 and May 2015 rating decisions from the VA Regional Office (RO) in Newark, New Jersey. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in February 2019. VA correspondence to the Veteran dated March 2020 explained that audio malfunctions prevented a complete transcript of the hearing, and an invitation for an additional hearing was presented. No request for an additional hearing has been made by the Veteran. 1. Rating reduction for headaches. The Veteran contends that the reduction of his service-connected headaches from 30 percent to 0 percent was improper. In a September 2011 rating decision, the RO granted the Veteran entitlement to service connection for headaches and assigned an initial disability rating of 30 percent under DC 8199-8100, effective May 11, 2011. The Veteran filed a claim for an increased rating for PTSD and individual unemployability in August 2012. VA performed a neurological examination in October 2012. In its January 2013 rating decision, the RO notified the Veteran of a proposal to decrease the evaluation for headaches from 30 percent to 0 percent, a noncompensable rating. The proposed decrease was effectuated in a July 2013 rating decision, effective October 1, 2013. The Veteran timely appealed the July 2013 rating decision. Under 38 C.F.R. § 4.124a, DC 8100, Migraine, a 0 percent rating is assigned for attacks less frequently than one in 2 months over the last several months. A 10 percent rating is assigned for prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is assigned for prostrating attacks averaging once a month over the last several months. Finally, a 50 percent rating is assigned for frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Under, DC 8100, a 50 percent rating is the maximum evaluation for migraine headaches. See 38 C.F.R. § 4.124a, DC 8100. In any case involving a rating reduction, the fact finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and a finding that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344(a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344(c). In such cases, 38 C.F.R. § 3.344(c) states that reexamination disclosing improvement will warrant reduction in rating. The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. In this case, the 30 percent rating for headaches was in place from May 2011, less than five years at the time it was decreased in July 2013. Therefore, evidence of improvement from a re-examination is sufficient to decrease a rating evaluation. See 38 C.F.R. § 3.344(c). However, at the time of his October 2012 VA examination, the Veteran reported “dull headaches almost daily, usually wakes up with them.” The report also stated that medication, including Gabapentin, was not effective to relieve the pain, which was described as “constant.” See October 2012 VA examination report. Not only did the October 2012 VA examination not demonstrate any improvement in headache symptoms, the data in the examination report was consistent with the Veteran’s medical history. See February 2007 Post-Deployment Interview and Assessment (“Chronic Headaches”), July 2007 Chronological Record of Medical Care (“continual HA”), and October 2007 NNMC Bethesda Chronological Record of Medical Care (“chronic headaches”). In doing so, the Board finds that the decrease in the rating for headaches from 30 percent to 0 percent, effective October 1, 2013, was not proper, and the Board restores the 30 percent rating from the effective date of decrease. See 38 C.F.R. § 3.344. 2. Rating reduction for PTSD. The Veteran contends that the reduction of his service-connected PTSD from 70 percent to 50 percent was improper. In a September 2011 rating decision, the RO granted the Veteran entitlement to service connection for PTSD and assigned an initial disability rating of 70 percent under DC 9422, effective May 11, 2011. The Veteran filed a claim for an increased rating for PTSD and individual unemployability in August 2012. VA performed mental disorder and PTSD examinations in October 2012. In its May 2015 rating decision, the RO notified the Veteran of a proposal to decrease the evaluation for PTSD from 70 percent to 50 percent. The proposed decrease was effectuated in a May 2015 rating decision, effective August 1, 2015. The Veteran timely appealed the May 2015 rating decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4 (2018). The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Evaluations for psychiatric disabilities are assigned pursuant to VA’s General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. The Veteran’s PTSD is rated under DC 9411. See 38 C.F.R. § 4.130. Under DC 9411, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more often than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating contemplates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for a psychiatric disorder resulting in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Further, rating evaluations under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Although a veteran’s symptomatology is the primary consideration in assessing their disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for that rating. Id.; 38 C.F.R. § 4.13. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the medical evidence of record shows that the Veteran’s psychiatric disability manifested in a pattern of occupational and social impairment, with deficiencies in most areas. An April 2007 VA treatment note diagnosed the Veteran with “Adjustment Disorder with Anxious Mood.” See April 2007 NMC Portsmouth Neurology Headache Note. A May 2014 VA treatment note recorded, “Anxiety and lack of daily activities caused (Veteran) to have headaches that were terrible after exploring past work history and some goals or hopes.” See May 2014 VA Mental Health Treatment Note Addendum. A September VA treatment note documented “debilitating anxiety” and “(Veteran) ruminates about past wrongs committed against him and his fear that such treatment will occur in the future.” See September 2014 VA Mental Health Treatment Note. In December 2014, the Veteran related an “[I]ncident that occurred on Thanksgiving in which his mother was insulted by a comment he made…increased his concern about having to be exposed to an uncomfortable and awkward   environment during Christmas. He is debating whether to make other arrangements on Christmas.” See December 2014 VA Mental Health Note. A January 2015 VA treatment note detailed, “The Veteran discussed his efforts to adapt to the stresses associated with his job working for the agency that oversees many (Compensated Work Therapy) assignments…the anxiety associated with his work has left him exhausted at times and intensified his headaches.” See January 2015 VA Mental Health Note. The January 2015 VA examination diagnosed the Veteran with PTSD and Unspecified Personality Disorder. Comments on the diagnoses included, “social isolation…anxiety…paranoid ideation towards most people; hatred and dislike of others.” With regard to occupational and social impairment, the examiner noted, “Occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and / or mood.” While differentiating symptoms attributable to each diagnosis, the examiner stated, “(Veteran’s) Personality Disorder appears to be primary and at times exacerbates his PTSD…PTSD may reduce his reliability and productivity but would not preclude employment.” Final remarks from the examiner included, “[P]ersonality characteristics can exacerbate (Veteran’s) PTSD and tendency to isolate from others.” See January 2015 VA examination report. The Veteran was admitted for inpatient treatment in July 2015 for “thoughts of hurting himself, depression, suicidal thoughts” and “intrusive thoughts of self-harm.” See July 2015 VA Psychiatric Unit Nursing Reassessment, October 2015 VA Nursing Admission Evaluation, and November 2015 VA Mental Health Treatment Note. The Veteran performed well in the Compensated Work Therapy (CWT) program, e.g., “met all the goals of the assignment and more, performing masterfully at the worksite (see December 2014 VA Mental Health Note)” and, “He has functioned well at the (CWT) job (see January 2015 VA Mental Health Note).” However, the medical evidence also reflects that the Veteran’s PTSD symptoms resulted in substantial occupational impairments. See May 2014 VA Mental Health Treatment Note Addendum, September 2014 VA Mental Health Treatment Note, and January 2015 VA Mental Health Note.   Resolving any reasonable doubt in favor of the Veteran, a review of the medical evidence of record indicates that the Veteran’s mental health pathology for the relevant period is consistent in documenting symptoms of occupational and social impairment with deficiencies in most areas as to warrant a rating of 70 percent. In addition, the January 2015 VA examination does not support a finding of the improved ability of the Veteran to function under the ordinary conditions of life and work. The Board finds that the decrease in the rating for PTSD from 70 percent to 50 percent, effective August 1, 2015, was not proper, and the Board restores the 70 percent rating from the effective date of decrease. See 38 C.F.R. § 3.344. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran contends that his service-connected disabilities, alone or in combination, preclude him from securing or maintaining substantially gainful employment, entitling him to a total disability rating (TDIU). The Board recognizes the May 2019 private provider examination opinion that concludes, “(Veteran) is unable to establish and maintain effective social and work relationships…incapable of maintaining competitive employment.” See May 2019 Comprehensive Psychological and Forensic Services Evaluation. Further, the Board takes note of the June 2020 VA examination which states, “(Veteran) continues to struggle with symptoms and personality characteristics which would make it difficult to find & maintain FT gainful employment.” See June 2020 VA PTSD examination report. While the private and VA-based examinations of record address the impact of the Veteran’s service-connected disabilities on his employability, further development is necessary to determine whether these disabilities, alone or in combination,   preclude his employability. For example, the Veteran indicated that he voluntarily left his employment in 2011 when he was granted service connection for an award of VA disability. See May 2019 Comprehensive Psychological & Forensic Services Evaluation. In another example, the Veteran applied for a TDIU in August 2012 but failed to complete the requested VA Form 21-8940, Application for Increased Compensation due to Individual Unemployability. See September 2012 VCAA Notice. Thus, the Board finds that additional evidence is required in order to review the overall disability picture and determine if the Veteran meets the unemployability requirements of 38 C.F.R. § 4.16. Accordingly, the matter is REMANDED for the following actions: 1. Obtain all VA and private treatment records which have not been obtained already. 2. Provide the Veteran with a VA form 21-8940, Application for Increased Compensation due to Individual Unemployability, and instruct him to complete and return it to the RO / AOJ. He must complete the form for the years 2010 to present. 3. Additionally, instruct the Veteran to submit copies of his tax returns for the tax years 2010 through the current tax year and a statement that the copies are exact duplicates of the returns filed with the IRS. If the Veteran is unable or unwilling to furnish the required evidence, follow the procedures in M21-1, Part I, 1.C.1. or ask the Veteran submit IRS Form 4506-T “Request for Transcript of Tax Return.” The following link is for reference purposes: https://www.irs.gov/pub/irs-pdf/f4506t.pdf   4. Readjudicate the claim. If the relief sought by the Veteran is not granted in full, issue a Supplemental Statement of the Case to the Veteran, and return the appeal to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.