Citation Nr: 21061407 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-29 508 DATE: October 4, 2021 ORDER The reduction of a disability rating from 70 percent to 30 percent for the Veteran's service-connected acquired psychiatric disability, diagnosed as post-traumatic stress disorder (PTSD) and anxiety disorder, effective from September 1, 2015 was improper and the 70 percent rating is restored. REMANDED Entitlement to an increased disability evaluation in excess of 70 percent for the Veteran's service-connected acquired psychiatric disability, diagnosed as post-traumatic stress disorder (PTSD) and anxiety disorder, is remanded. A total disability rating based upon individual employability (TDIU) on a schedular basis due to the Veteran's service-connected disabilities is remanded. FINDING OF FACT The record demonstrates that at the time the RO reduced the 70 percent evaluation assigned to the Veteran's service-connected PTSD, there had not been sustained material improvement in his PTSD. CONCLUSION OF LAW The criteria for restoration of a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.105 (e), 3.159, 3.343, 3.344, 4.1, 4.2, 4.10, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from June 1977 to October 1996, for which he was awarded the Bronze Star and the Combat Infantryman Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2015 and September 2017 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in May 2021; a transcript of that hearing is of record. As an initial matter, the Board notes that a claim appealing a reduction in a disability rating is separate from a claim seeking entitlement to an increased disability rating. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-280 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In this case, because the rating reduction at issue was initiated by VA during the course of the Veteran's claim for an increased evaluation of his service-connected acquired psychiatric disability, this appeal involves both the propriety of the rating reduction, as well as entitlement to an increased disability rating. See 38 C.F.R. § 3.156(b). In addition, the Board recognizes that where a veteran seeking an increased disability rating submits evidence of unemployability, the veteran's entitlement to a total disability based on individual unemployability (TDIU) must be considered as an element of any underlying increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009); see also 38 C.F.R. § 4.16. In this case, the Board notes that the Veteran contends he has been unemployed since 2011 due to his service-connected disabilities. See id. Accordingly, the Board has amended the issues on appeal to include entitlement to a TDIU as reflected above. The Veteran appeals the reduction in his disability rating for PTSD. In a June 2015 rating decision, this disability was assigned a reduced rating, from 70 percent to 30 percent, effective September 1, 2015. He asserts that not only that a reduction is not warranted, but that this disability has increased in severity, and an increased rating is in fact warranted. In a rating reduction, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1994); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The provisions of 38 C.F.R. §§ 4.1, 4.2, and 4.10 require that a reduction in rating be based upon review of the entire history of a veteran's disability. VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). VA is not limited, however, to medical indicators of improvement. Rather, VA may rely on non-medical indicators of improvement to show that a veteran is capable of more than marginal employment. Id. The examination reports on which the reduction are based must be adequate. See Tucker v. Derwinski, 2 Vet. App. 201 (1992) (holding that the failure of the examiner in that case to review the claims file rendered the reduction decision void ab initio). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Where, however, the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). Specific requirements must be met in order for VA to reduce certain ratings assigned for service-connected disabilities. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The requirements for reduction of ratings in effect for five years or more are set forth at 38 C.F.R. § 3.344 (a) and (b), which prescribe that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction; these provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. At the time of the October 2014 rating that proposed the reduction the PTSD with anxiety had been in effect since December 2011 so less than 5 years. Accordingly, the provisions of 38 C.F.R. § 3.344 (a) do not apply to this rating. Under the provisions of 38 C.F.R. § 3.344 (c), when a disability rating has been in effect for less than five years, a reexamination that shows improvement in a disability warrants a reduction in disability benefits. Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. See Brown at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10 and 4.13); 38 C.F.R. § 3.344 (c). In determining whether the reduction was proper in this case, the Board must focus upon the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had actually improved. Cf. Dofflemyer, 2 Vet. App. at 281-282. Such after-the-fact evidence may not be used to justify an improper reduction. After a review of all the evidence of record, the Board finds that at the time of the reduction of the disability rating for the service-connected PTSD from a 70 percent rating to a 30 percent rating, there had been no actual improvement in the PTSD, and the criteria for restoration of a 70 percent rating have been met. PTSD is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code (DC or Code) 9411. Under this General Rating Formula, a 30 percent disability rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more 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. 38 C.F.R. § 4.130. A 70 percent rating is warranted for 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 (such as 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. Id. Finally, a total, or 100 percent, rating is awarded on evidence of 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. Id. The VA Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one General Rating Formula for Mental Disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment"). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Service connection for anxiety was initially granted in a September 2012 rating decision. At that time a 70 percent evaluation was awarded effective December 1, 2011. The Veteran filed a claim for PTSD which was granted in an October 2014 rating decision. This rating decision rated the PTSD with the anxiety and proposed a decreased rating. The September 2012 rating decision granted the 70 percent rating based upon symptoms of difficulty adapting to a worklike setting, difficulty adapting to stressful circumstances, difficulty adapting to work, impaired impulse control, examiner's assessment of mental functioning, difficulty establishing work and social relationships, disturbances of motivation and mood, impaired judgment, anxiety, depressed mood, panic attacks and suspiciousness. A September 2014 VA outpatient treatment record reflects that the Veteran described times when he felt very depressed to the point he stopped taking his medications resulting in additional health problems. He also felt PTSD symptoms were returning and the psychologist suggested that he has been so preoccupied with his other health diagnosis that he had little time to think of PTSD. At the time of the October 2014 rating decision the Veteran reported that his symptoms had worsened and he could no longer perform a normal job due to his nightmares, loss of interest, depression, anxiety, irritation, trouble sleeping and isolation. VA outpatient treatment records in the file at the time of the rating decision reflect the Veteran was actively getting mental health treatment. These records reflect that he reported significant problems with memory and focus. He was noted to have difficulty articulating what brought him to seek evaluation. He did report past suicidal thoughts but nothing recent and described a lack of motivation. In January 2014 the Veteran described problems at night and paranoia. He described trouble with concentration and decreased energy and lack of motivation to do things he used to enjoy. He described difficulty with concentration and memory including things like remembering names. He reported nightmares, intrusive thoughts, irritability and hypervigilance and trouble in crowds. He denied current suicidal or homicidal thoughts but explained he had them about 6-7 months after return Afghanistan in 2011. In June 2014 a VA outpatient treatment record noted he had an argument with his wife a few days prior when the police were called. He described apprehension, hypervigilance and was provided materials on anger and stress management. During the October 2014 VA examination that the AOJ used to propose the reduction the examiner concluded there was 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 Veteran reported that he had been suicidal in the past but no plan and had been in counseling at the VA for four months. He took medication. He explained he did not like crowded places, loud noises, did not socialize, had trouble sleeping and nightmares. He indicated he used to have panic but the medications helped the panic. He got paranoid and watching the news made him feel like he was reliving the events. He avoided crowds and did not see friends and stopped doing activities he previously enjoyed. He reported he felt detached form people and was more irritable. He reported he stops taking medication at times because he feels depressed about all the pills he takes. Symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment and inability to establish and maintain effective relationships. The examiner indicated that based upon the examination the Veteran needed to seek follow up treatment and he requires further treatment for PTSD. The examiner concluded that the PTSD was at least as likely as not incurred in service and in that rationale indicated that it appeared the anxiety disorder progressed into PTSD and that the Veteran had mild to moderate impairments as far as PTSD impacting his ability to work. After the October 2014 rating decision that proposed reduction, the veteran submitted a December 2014 private medical record that concluded the Veteran had a clear decompensation in functioning. The symptoms of PTSD that were manageable in the past became unmanageable after returning from the middle east in 2011. He described reexperiencing traumas almost daily, isolation from others, family relationships have suffered and irritability and depression. He was unable to work and make decisions due to his inability to concentrate and focus and his extreme anger and irritability. Furthermore, he is on several medications that make him groggy if he takes them but if he refuses them he becomes unstable emotionally, angry, irritable and difficult to communicate and get along with. The Board finds that the medical evidence does not show an improvement in the PTSD. The Veteran consistently described symptoms including irritability, anxiety, panic, isolation, and hypervigilance. Significantly, the October 2014 examination that was used to support the proposed reduction checked first that the symptoms were "mild or intermittent" however in a different part of the report noted there were "mild to moderate" symptoms and indicated the Veteran required follow up treatment. Additionally, the examiner did not consider or address the VA outpatient treatment records that showed a level of severity that did not reflect improvement including symptoms requiring treatment and medication, significant problems with memory and focus, having the police called after a fight, and thoughts of depression resulting in him not taking medication. The Board also finds that the medical evidence does not show an improvement in the Veteran's ability to function under the ordinary conditions of life and work. There is also no evidence that the lack of symptoms noted on the date of the examination improved the Veteran's ability to function. As noted above, the examiner did not consider the treatment records reflecting more symptoms and also reflecting that the Veteran frequently had trouble articulating the symptoms he was experiencing. A private assessment shortly after the reduction also supports the finding that the Veteran's condition had not improved. Thus, the Board resolves all doubt in favor of the Veteran and finds that actual improvement in his ability to function under the ordinary conditions of life and work has not been shown. As such, the Board finds that the rating reduction was improper. Accordingly, the 70 percent evaluation for PTSD is restored. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation in excess of 70 percent for the Veteran's service-connected acquired psychiatric disability, diagnosed as post-traumatic stress disorder (PTSD) and anxiety disorder, is remanded. 2. A total disability rating based upon individual employability (TDIU) on a schedular basis due to the Veteran's service-connected disabilities is remanded. Unfortunately, the Veteran's claims must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. During the Board hearing the Veteran testified that his symptoms had worsened. He indicated that he felt he had gone downhill and that his doctors had been changing his medication dosage. As such an updated examination is necessary. Accordingly, these matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from December 2020 to present. 2. After the above development and any additionally indicated development has been completed, obtain a VA examination to assess the severity of the PTSD. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. Based upon a review of the entire record, the examiner is requested to provide an opinion as to the combined functional impact of the Veteran's service-connected disabilities on his employability. The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Marsdale 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.