Citation Nr: 21063490 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-48 704 DATE: October 14, 2021 ORDER Reduction of the rating of posttraumatic stress disorder (PTSD) from 100 percent to 70 percent effective July 1, 2015 was proper, and the appeal is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. At the time of the rating reduction of PTSD, the evidence of record showed improvement in the Veteran's ability to function under the ordinary conditions of life and work. 2. The Veteran's service-connected disabilities do not preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The reduction of the rating of PTSD from 100 percent to 70 percent effective July 1, 2015 was proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to March 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the claims for further development. There has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Reduction of the rating of PTSD from 100 percent to 70 percent effective July 1, 2015 was proper, and the appeal is denied. The Veteran disputes the reduction of his psychiatric disability rating from 100 percent to 70 percent. See May 2015 notice of disagreement (NOD); September 2017 VA Form 9. By way of background, the RO granted service connection for PTSD in a May 2012 rating decision with a 70 percent rating effective March 21, 2012. In October 2012, the Veteran sought a higher rating. In January 2013, the RO granted a 100 percent rating effective October 2, 2012. In January 2014, the Veteran sought a permanent and total rating (P&T). The RO proposed to reduce the rating from 100 percent to 70 percent based on evidence of improvement in his symptoms in a July 2014 rating decision. The reduction was finalized in the April 2015 rating decision on appeal. In May 2015, VA received notice of disagreement (NOD) with the rating reduction. A July 2017 statement of the case (SOC) affirmed the reduction. In September 2017, the Veteran filed at timely substantive appeal. Where a veteran's disability rating is reduced, the Board must determine whether the reduction of the veteran's disability rating was proper and must not phrase the issue in terms of whether the veteran was entitled to an increased rating, including whether the veteran was entitled to restoration of a previous rating. See Hedgepeth v. Wilkie, 30 Vet. App. 318, 323 (2018). As this appeal stems from the rating reduction, there is no increased rating claim on appeal before the Board. The Board will proceed with determining the propriety of the reduction of the PTSD rating from 100 percent to 70 percent. The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Moreover, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). In any rating reduction case, it not only must be determined whether an improvement in disability occurred, but whether it actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. §§ 4.2, 4.10. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on 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 condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. at 281-282 (1992). The April 2015 rating action reduced the Veteran's overall rating from 100 percent to 70 percent effective July 1, 2015. Thus, the procedural safeguards of 38 C.F.R. § 3.105(e) apply. Here, the Veteran was notified of the proposed rating reduction and his rights to submit evidence or request a hearing in relation to the proposed reduction in July 2014. In addition, the rating action that reduced the rating was not issued until April 2015, more than 60 days after the notice of the proposed reduction, and the effective date of July 1, 2015, which is beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. Thus, the Board finds that the procedural safeguards have been met for the reduction of the PTSD evaluation. 38 C.F.R. § 3.105(e). As of the effective date of the reduction, the 100 percent rating had been in effect for approximately two years and nine months. As the rating was in effect for less than five years, 38 C.F.R. § 3.344(c) applies, and the added protections of § 3.344(a), (b) are not applicable. A reexamination disclosing improvement in this disability will warrant a reduction in the rating. 38 C.F.R. § 3.344(c). The Veteran's PTSD is rated under Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The assignment of the initial 100 percent rating was based on an October 2012 VA examination. At the exam, the Veteran was diagnosed with PTSD and recurrent, moderate major depressive disorder (MDD). The examiner noted it is not possible to differentiate which symptoms are attributable to each diagnosis. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; obsessional rituals which interfere with routine activities; persistent delusions of hallucinations; and disorientation to time or place. For other symptoms, the examiner noted that when the Veteran is triggered by loud noise or gunshot, he is "getting down and looking for my weapon and pack I can see them." The Veteran was capable of managing his financial affairs. The examiner summarized the Veteran's level of occupational and social impairment with regards to the diagnosed mental disorders as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran underwent a VA examination for PTSD in May 2014. He was diagnosed with PTSD and recurrent, moderate MDD. The examiner noted it is not possible to differentiate which symptoms are attributable to each diagnosis. The examiner noted that the Veteran has been married to his third wife since November 2011, and live with a 6-year-old stepson and an 11-month-old daughter in a house in Tennessee. When the Veteran was asked if he had friends, he replied, "oh yeah," and that he enjoys bowling and does so weekly with friends. He stated he is currently not employed. He reported he was last employed at Ft. Campbell as a supervisor of cashiers at the commissary for 8 months until January 2013 when he resigned because "my disability came through." He stated he was getting angry at other people and had difficulty getting along with them. He however stated that he did not feel that there is any reason he would not be able to work if he had a job. He stated he spends his days taking care of his daughter, and with a friend who lives down the street. He reported feeling sad "almost all the time," and feels like crying approximately twice a week but does not cry. He reported flashbacks with auditory and visual experience related to combat. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; and persistent delusions or hallucinations. The examiner summarized the Veteran's level of occupational and social impairment with regards to the diagnosed mental disorders as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner also commented that the Veteran's prognosis is fair to good, and that there is some likelihood that his symptoms will improve. The Veteran's VA treatment records show that he has been receiving mental health treatment since September 2012. Notably, a July 2014 VA treatment record shows the Veteran completed 12 sessions of cognitive processing therapy (CPT) for PTSD that began in March 2014. The record noted the Veteran has resolved feelings of survivor's guilt and that "I don't blame myself anymore." He also identified decreasing avoidance as he is able to go out into public places and is more interactive with others. He reported he plans to attend school this fall and being involved in a weekly bowling league. He reported a decrease in PTSD symptoms such as nightmares, avoidance of reminders, and irritability. It noted that the Veteran's initial treatment goals have been met as evidenced by increase in self-esteem, successfully building rapport and trust with the clinical social worker, and decreasing anxiety and hypervigilance. On mental status examination, the Veteran was well-groomed; oriented x4; his speech was normal in rate, quality, and volume; thought content was appropriate; thought processes were linear, logical, organized, and goal-directed; memory/cognition was intact; and denied hallucinations, or suicidal or homicidal ideation. He was offered monthly CPT aftercare appointments but declined it due to continued progress and symptom relief. In an August 2014 VA psychiatry note, the Veteran reported that medications and PTSD therapy has helped. He reported his sleep remains improved, anger and anxiety remain under control, and his nightmares occurred occasionally about once a week. He denied suicidal or homicidal thoughts. He reported he expects to start working for Department of Defense (DoD) in the finance/accounting department which is something he has done for years. He was well groomed; he was pleasant and cooperative; he had normal speech in rate, tone, and volume; his thought process/content was organized without delusions; he was oriented x3; his judgment was adequate. He reported being satisfied with the improvement he has had with medications, and agreed to continue them. In an October 2014 VA record, the Veteran called and stated he wanted to unenroll in the caregiver program as he is now working a full-time job. His medical records are silent until September 2018. In the May 2015 NOD, the Veteran stated he moved to Indiana in September 2014. He stated his sleep has gotten worse and can only sleep 2-3 hours each night. He stated his nightmares have come back full force and has shut down from everyone. He stated he tries not to communicate with anyone because they will look at him weird. He stated every time he tries to do something, his anxiety is uncontrollable. He stated he and his wife are separated, trying to see if he can get better elsewhere. He stated it has not helped at all since he has moved. He stated everything has gotten worse. He thought he would be able to work, but that has not worked out. He stated he start yelling at his former supervisor, and snapped off at other employees. He stated he cannot work in the condition he is in. In the September 2017 VA Form 9, the Veteran stated he split up with his wife and moved out of state. He stated his wife and he separated due to fear of him harming her or their children. He stated his stress was escalating to where any little noise was setting him off. He stated his symptoms have been getting worse and worse. He stated he sleeps approximately 10-12 hours per week, distances himself from family, and does not have any friends. He stated when he does sleep, he wakes up constantly due to nightmares. He stated he thinks about suicide almost daily and attempt it about once a month. He stated he cannot drive due to road rage. He stated his anxiety is so severe and have withdrawn himself from any type of outing. He stated has been on the verge and is still on the verge of losing his job due to how much he has to call in. He stated he misses at least 2-3 days per a 2-week pay period due to his psychiatric condition. He stated he does not remember to pay bills or attend appointments because he always forgets. He stated he has had his electricity turned off a couple of times due to lack of memory. In a September 2018 VA mental health assessment, the Veteran reported he has not been on psychiatric medications for several years, stating he had difficulty getting refills when he moved to Indiana. He stated he moved from Tennessee to Indiana due to work, but described his mental health as "falling apart" after the move. He reported his symptoms have worsened and that he is not "very fun to be around." He stated he tends to shut down emotionally and stays to himself. He reported occasional irritability. He reported severe symptoms of depression, including suicidal ideation within the past week. He stated he resides with girlfriend of 18 months and have good relationship. He stated he would like to re-engage with medications and psychotherapy. On mental status examination, he was oriented x4; cooperative and open; well-groomed; his mood was anxious; he displayed normal attention and concentration; his speech was average in rate, rhythm, volume, and tone; his thought process was logical, linear, and goal-oriented; his psychomotor was somewhat restless; his insight was adequate. The Veteran underwent a VA examination in January 2019. He was diagnosed with PTSD. He reported he currently resides in Indiana with his girlfriend and her son. He stated that home is fine, but that "I don't talk about what's going on with me. I can get pretty irritable though." He stated he has been employed with the Defense Finance and Accounting Service (DFAS) for the past 4 years. He reported his work is "fine" but that he has a high rate of "call offs." He described often calling in sick to work as he feels too anxious to be able to fully concentrate, tolerate the noise of the office, and complete tasks as expected. He reported he has been reprimanded by supervisors on at least two occasions for being verbally aggressive towards his co-workers. He stated he is working full-time in this position. He stated that he participated in CPT in Tennessee in 2014, and has made him feel he made significant progress during the course of the treatment but discontinued after 9 sessions. He indicated his symptoms have worsened since 2015. He stated that he currently has nightmares almost every night. He reported he is chronically angry, irritable, and hostile. He described being intolerant of loud noises and chaotic environments. He described often feeling overwhelmed and needing to withdraw. He stated that his general sense of anxiety is quite high which often makes thinking clearly and staying focused very difficult. He noted that he often struggles with distractibility as he experiences frequent intrusive memories and images related to having killed a man in combat and having a friend shot in the head. He indicated that he experiences significant survivor's guilt regarding the friend who was shot next to him. He stated his irritability often makes interacting with others quite difficult as he can be verbally aggressive. He stated he has virtually no support system as he prefers not to have to "deal with friendships." He described avoidance behaviors which keep him from going to work regularly, seeking continued mental health treatment, and talking about his military experiences. The examiner noted the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence. The examiner summarized the Veteran's level of occupational and social impairment with regards to his PTSD as occupational and social impairment with reduced reliability and productivity. After careful review, the Board finds that reduction of the disability rating for PTSD from 100 percent to 70 percent was proper, and a restoration of the 100 percent disability rating is not warranted. Compared to the October 2012 examination, the May 2014 examination shows less symptoms to include impairment of short- and long-term memory; flattened affect; and disorientation to time or place. He stated during the May 2014 exam that he enjoys weekly bowling with his friends. The July 2014 VA record noted the Veteran has resolved feelings of survivor's guilt, and that "I don't blame myself anymore." He also identified decreasing avoidance as he is able to go out into public places and is more interactive with others. He reported decrease in PTSD symptoms such as nightmares, avoidance of reminders, and irritability. His August 2014 VA psychiatry record noted his medications and PTSD therapy has helped him, and that he was expecting to work for DFAS. He reported being satisfied with the improvement he has had with medications. The September 2018 and January 2019 exam noted he has been working for DFAS for the past 4 years. Given the foregoing evidence, the Board finds that there has been an actual improvement in his psychiatric condition. While the Veteran stated in the 2015 NOD that his condition has worsened and that he cannot work in the condition he is in, the records show that he was working full-time at DFAS at the time of that statement, which is in stark contrast to his statement. In sum, the Board finds that the record at the time of the reduction shows an improvement in the Veteran's ability to function under the ordinary conditions of life and work. The Board further notes that a restoration of the 100 percent disability rating for the Veteran's psychiatric disability is not warranted, and that the weight of the evidence demonstrates that the criteria for a disability rating in excess of 70 percent have not been met for any part of the rating period on appeal. During the period on appeal, his psychiatric disability has been productive of significant, but not total, occupational and social impairment due to symptoms that were mostly represented by the 70 percent rating criteria, including: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; suicidal ideation; impairment of short- and long-term memory; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; impaired impulse control; obsessional rituals which interfere with routine activities; persistent delusions of hallucinations; and disorientation to time or place. Such degree of impairment of symptoms does not more nearly approximate the criteria for the highest 100 percent evaluation under Diagnostic Code 9411. 38 C.F.R. § 4.130. With respect to social impairment, the evidence demonstrates that the Veteran is capable of basic social interaction. The May 2014 VA examination noted he enjoys bowling and does so weekly with friends. He stated he took care of his daughter and had a friend near his house. His July 2014 VA record noted decreased avoidance as he is able to go out into public places and is more interactive with others. His September 2018 VA record notes that he resides with his girlfriend of 18 months and has good relationship. This evidence demonstrates that the Veteran's capacity for social relationships is not totally impaired. With respect to occupational impairment, the evidence demonstrates that the Veteran is capable of basic occupational functioning. He reported at the May 2014 exam that worked as a supervisor of cashiers at Ft. Campbell commissary until January 2013. He reported he has been working full-time at DFAS since around October 2014. This evidence demonstrates that the Veteran's capacity for occupational functioning is not totally impaired. Notably, none of the VA examiners have endorsed total occupational and social impairment. As indicated above, the Veteran has been afforded several VA examinations, none of which showed that the frequency and severity of all the psychiatric symptoms caused total social and occupational impairment. While the above-referenced examination reports demonstrate significant occupational and social impairment, they do not show total occupational and social impairment. For these reasons, the Board finds that the reduction of the PTSD rating from 100 to 70 percent was proper, and that the weight of the evidence is against restoration of the 100 percent rating. 38 C.F.R. § 3.344. 2. Entitlement to a TDIU is denied. Entitlement to a TDIU was raised under Rice v. Shinseki, 22 Vet. App. 447 (2009) in the April 2019 remand. It appeared that there has been a period during the appeal where the Veteran might have been unable to work due to his service-connected disabilities. The Veteran reported at the May 2014 exam for PTSD that he left his job in January 2013 due to his PTSD symptoms. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38C.F.R. §4.16(b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Veteran is service-connected for: PTSD rated 70 percent from March 21, 2012, 100 percent from October 2, 2012, and 70 percent from July 1, 2015; and right knee strain rated 10 percent from June 24, 2009. The combined rating is 10 percent from June 24, 2009; 70 percent from March 21, 2012; 100 percent from October 2, 2012; and 70 percent from July 1, 2015. Thus, the schedular criteria for a TDIU are met during the appeal period. The United States Court of Appeals for Veterans Claims (Court), in Ray v. Wilkie, 31 Vet. App. 58 (2019), interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Board finds the evidence does not support a TDIU during the appeal period because the Veteran was working in a substantially gainful occupation during the relevant period. In an August 2014 VA psychiatry note, the Veteran reported he expects to start working for DoD in the finance/accounting department which is something he has done for years. In an October 2014 VA record, the Veteran called and stated he is now working a full-time job. During the January 2019 VA examination for PTSD, the Veteran stated he has been employed with the DFAS for the past 4 years, working full-time. The examiner summarized the Veteran's level of occupational and social impairment with regards to his PTSD as occupational and social impairment with reduced reliability and productivity. His May and October 2019 VA records also show the Veteran has been working for DFAS in accounting since 2014. A September 2020 VA treatment record notes that he has been working from home since April 2020. After careful review of the evidentiary record, the Board finds that the evidence of record does not show that functional impairment caused by the Veteran's service-connected disabilities resulted in an inability to secure and maintain a substantially gainful occupation during the appeal period. With respect to the economic component in Ray, the record shows the Veteran worked at a military commissary as a supervisor of cashiers until January 2013, and has been working at DFAS in an accounting position since around August 2014. The working environment of a supervisor of cashiers at a commissary and an accounting personnel at a government agency does not appear to be marginal or protected. There is no income information on file. However, based on available records, the only period that he was unemployed possibly due to his service-connected disabilities is from February 2013 to July 2014, during the period that the Veteran was in receipt of a 100 percent schedular rating. Thus, a TDIU is not warranted during the relevant appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Entitlement to a TDIU is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, 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.