Citation Nr: 21065969 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-22 600 DATE: October 28, 2021 ORDER Restoration of a 70 percent disability rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), to include symptoms of traumatic brain injury (TBI), effective April 14, 2017, is granted. Restoration of a 20 percent disability rating for chronic lumbar spine sprain, effective November 22, 2016, is granted. REMANDED Increased rating in excess of 70 percent for PTSD with MDD, to include symptoms of TBI, prior to January 29, 2020 is remanded. Increased rating in excess of 20 percent for chronic lumbar spine sprain is remanded. FINDINGS OF FACT 1. By May 2017 rating decision, the agency of original jurisdiction (AOJ) reduced the disability rating for PTSD with MDD, to include symptoms of TBI, from 70 percent to 50 percent, effective April 14, 2017, and reduced the disability rating for chronic lumbar spine sprain from 20 percent to 0 percent, effective November 22, 2016. 2. No procedural due process protections were accomplished prior to effectuating the rating reductions. 3. The rating reductions are void ab initio. CONCLUSIONS OF LAW 1. The criteria for restoration of a 70 percent rating for service-connected PTSD with MDD, to include symptoms of TBI, have been met, effective April 14, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 3.105 (e). 2. The criteria for restoration of a 20 percent rating for service-connected chronic lumbar spine sprain, have been met, effective November 22, 2016. 38 U.S.C. § 1155; 38 C.F.R. § 3.105 (e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2005 to August 2008. This appeal arises from a May 2017 rating decision, reducing the rating for the Veteran's PTSD with MDD, to include symptoms of TBI from 70 percent to 50 percent, effective April 14, 2017; and reducing the rating for the Veteran's chronic lumbar spine sprain from 20 percent to 0 percent, effective November 22, 2016. During the pendency of the appeal, in a March 2020 rating decision, the AOJ increased the rating for the Veteran's PTSD with MDD, to include symptoms of TBI from 50 percent to 100 percent, effective from January 29, 2020, the date of a VA examination. The March 2020 rating decision also awarded staged increased ratings for the Veteran's chronic lumbar spine sprain from 0 percent to 10 percent, effective November 22, 2016, the date of a VA examination; and a higher 20 percent evaluation effective January 23, 2020, the date of another VA examination. The Veteran testified at a Board virtual hearing in June 2021, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). In this case, the Board reviews the evidence of record since June 2013, which is one year before the June 2014 increased rating claim was filed. REFERRED The Veteran has been in receipt of special monthly compensation (SMC) for the service-connected PTSD/TBI, effective from February 8, 2010. However, at his June 2021 Board hearing, he raised the issue of receiving SMC for his TBI. So, the Veteran appears to be seeking SMC benefits for the period from the day after separation (August 14, 2008) until February 8, 2010, as he is not receiving such SMC benefits during that period. In this case, the Veteran's current increased rating claim for PTSD/TBI was filed in June 2014, so that the SMC claim for a prior period (August 2008 to February 2010) is not on appeal before the Board. The matter is referred for any clarification or action deemed appropriate. Increased Rating 1. Restoration of a 70 percent disability rating for PTSD/MDD/TBI, effective April 14, 2017 2. Restoration of a 20 percent disability rating for chronic lumbar spine sprain, effective November 22, 2016 Congress has provided that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. VA regulations provide that where the reduction in a disability rating of a service- connected disability or employability status is considered warranted and the lower disability rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified of the contemplated action and furnished detailed reasons for the reduction and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. Id. The Veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the Veteran expires. 38 C.F.R. § 3.105 (e). The United States Court of Appeals for Veterans Claims (Court) has consistently held that when an RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. By history, the Veteran filed an increased rating claim for his service-connected disabilities in June 2014. In response, the AOJ's April 2015 rating decision denied an increased rating for the Veteran's PTSD with MDD, to include symptoms of TBI in excess of 70 percent, which had been in effect since February 8, 2010, and denied an increased rating for the Veteran's chronic lumbar spine sprain in excess of 20 percent, which had been in effect since December 1, 2008. For these disabilities, the AOJ's rating decision narrative noted that since there is a likelihood of improvement, the assigned evaluations, respectively, were not considered permanent and subject to a future review examination. However, neither the rating decision narrative nor its associated notification letter provided due process notice to the Veteran of any proposed reduction for the PTSD/MDD/TBI or lumbar spine disabilities. Subsequently, a May 2017 rating decision reduced the rating for PTSD with MDD, to include symptoms of TBI from 70 percent to 50 percent, effective April 14, 2017, and reduced the rating for chronic lumbar spine sprain from 20 percent to 0 percent, effective November 22, 2016. As noted, there is no indication the AOJ followed the due process requirements under 38 C.F.R. § 3.105 (e), including providing a proposed rating reduction, giving a 60-day opportunity for the presentation of additional evidence, and a 30-day opportunity to request a predetermination hearing. The Board finds that the RO did not provide the Veteran the required procedural protections under § 3.105 (e), prior to effectuating the reduction to 50 percent for PTSD/TBI or the reduction to 20 percent for the lumbar spine disability. Thus, the Board finds that the May 2017 rating decision implementing the rating reduction for PTSD/TBI was improper and thus void ab initio. See Greyzck, 12 Vet. App. at 292. The 70 percent rating for PTSD/TBI is restored, effective April 14, 2017. Similarly, the Board finds that the May 2017 rating decision implementing the rating reduction for chronic lumbar spine sprain was improper and thus void ab initio. Id. The 20 percent rating for chronic lumbar spine sprain is restored, effective November 22, 2016. Consequently, the Veteran is now in receipt of a 20 percent rating for his lumbar spine disability for the entire pendency of the appeal. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 70 percent for PTSD with MDD, to include symptoms of TBI, prior to January 29, 2020 On the basis of the January 2021 VA TBI and PTSD examinations, the AOJ increased the Veteran's PTSD/TBI disability evaluation from 70 to 100 percent, effective January 29, 2021. However, the Board presently finds that additional medical comment would be helpful to determine whether the Veteran's PTSD/TBI disability increased in severity beyond 70 percent prior to January 29, 2021. A retrospective opinion addressing the Veteran's impairments from PTSD and TBI would be helpful in assessing the Veteran's impairment prior to January 29, 2021. 2. Entitlement to an increased rating in excess of 20 percent for chronic lumbar spine sprain During the pendency of the appeal, the Veteran was provided a February 2015 VA examination which found forward flexion to 90 degrees, with no additional loss of motion on repetitive use, or repeated use over time, or due to flare-ups. The examiner also found moderate, left-sided sciatic nerve radiculopathy. At the next VA examination in November 2016, the Veteran showed further limitation of motion of forward flexion to 50 degrees, with no additional functional loss on repetitive use, and the examiner could not comment without speculation if there was additional functional loss due to either repeated use over time or due to flare-ups. The examiner also found moderate, left-sided sciatic nerve radiculopathy. The most recent VA back examination, January 2020, found forward flexion to 60 degrees without pain noted on exam, no additional loss of motion on repetitive use or on repeated use over time, and no findings on motion due to flare-ups as the Veteran denied flare-ups. However, the examiner found no radiculopathy, in contrast to prior examiners' findings. A remand is necessary to provide the Veteran another VA examination to assess and reconcile the severity of his chronic lumbar spine sprain and any associated neurological impairment. The matters are REMANDED for the following action: 1. Obtain a retrospective medical opinion from the January 2021 VA PTSD and TBI examiners, or an appropriate clinician if either January 2021 VA examiner is not available, to determine the severity of the Veteran's PTSD/TBI disability prior to January 29, 2021. After reviewing the record, the examiner should comment whether there was any increased functional impairment due to his PTSD/TBI disability in the time period from June 2013 to January 2021. The examiner should provide a retrospective medical opinion that identifies any symptoms and functional impairments due to his service-connected PTSD/TBI disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. A complete rationale should be provided for all opinions rendered. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic lumbar spine sprain. All necessary tests should be conducted. On review of the record, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner should reconcile the contradictory findings regarding the severity of the chronic lumbar spine sprain and any associated neurological impairment, including the sciatic nerve radiculopathy noted in the February 2015 and November 2016 examination reports versus findings in the January 2020 examination report, as discussed above. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Chatterjee, B. 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.