Citation Nr: 21070153 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-23 443 DATE: November 23, 2021 ORDER The reduction of the 50 percent disability rating to 30 percent for service-connected posttraumatic stress disorder (PTSD), effective September 1, 2016, was not proper; restoration of the 50 percent rating for PTSD is granted. FINDING OF FACT At the time of the June 2016 rating decision reducing the rating for the service-connected PTSD from 50 percent to 30 percent, the evidence did not show that the disorder demonstrated sustained material improvement under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the 50 percent disability rating to 30 percent for service-connected posttraumatic stress disorder (PTSD), was not proper and restoration of the 50 percent rating is restored, effective September 1, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from January 2007 to January 2011 including service in Iraq from 2007 to 2008 as a field medical service technician. By way of background, an August 2013 rating decision granted service connection for PTSD with an initial rating of 50 percent effective January 22, 2011. A November 2015 rating decision proposed to reduce the 50 percent rating to 0 percent based on the Veteran's failure to report to a VA examination. As will be outlined in more detail below, the Veteran subsequently contacted VA and reported for a VA examination in February 2016. Based on the February 2016 VA examination findings, the RO effectuated a reduction to 30 percent, effective September 1, 2016, in a June 2016 rating decision, which is now on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The reduction of the 50 percent disability rating to 30 percent for service-connected PTSD, effective September 1, 2016, was not proper; restoration of the 50 percent rating for PTSD is granted. 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; 38 C.F.R. § 3.105(e). When a rating reduction has the effect of reducing the compensation paid to a veteran, 38 C.F.R. § 3.105 imposes certain procedural requirements before VA can effectuate the rating reduction. Here, the Board finds that the due process requirements for the reduction in question have been satisfied. Nonetheless, the Veteran contends that he is entitled to restoration of a 50 percent rating for his service-connected PTSD, effective September 1, 2016. He contends that the 50 percent rating should be restored because his PTSD symptoms have not improved. See July 2016 NOD. The Veteran's 50 percent rating for PTSD was assigned from January 22, 2011 to September 1, 2016, a period of over five years. Where, as here, a disability rating has been in effect for five years or longer, a rating reduction is warranted when reexamination discloses sustained material improvement. 38 C.F.R. § 3.344(a), (b); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A rating reduction is not proper unless the Veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000). 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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that retention of the higher evaluation is warranted; rather, the burden is on the Board "to establish, by a preponderance of the evidence that a rating reduction is warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Court in Brown further held that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." 5 Vet. App. at 121. The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, PTSD was rated under the criteria found at 38 C.F.R. § 4.130, DC 9411. PTSD is rated under the General Rating Formula for Mental Disorders. Under the Mental Disorders rating formula, a 30 percent rating is prescribed when there is evidence of 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). 38 C.F.R. § 4.130. A 50 percent rating is prescribed when there is evidence of 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. Id. After review of the lay and medical evidence of record, a sustained material improvement of PTSD has not been demonstrated, including under the ordinary conditions of life and work; therefore, the rating reduction was not proper. Thus, the criteria for restoration of a 50 percent rating for PTSD, effective September 1, 2016, have been met. The medical evidence of record contains two VA medical examinations that addressed the Veteran's service-connected PTSD. An initial PTSD VA examination was afforded the Veteran in July 2013. At this time the Veteran was formally diagnosed with PTSD. No other mental disorder was diagnosed, and it was noted by the examiner that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran denied any legal or behavioral problems. He did report that his "marriage is going down the drain" and was currently living with his brother. The Veteran reported having over eight jobs in the past two years because he either quit or got fired. He further reported drinking a "12 pack of beer a week". The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, 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, inability to establish and maintain effective relationships. Lastly, the examiner opined that the Veteran was capable of managing his own finances and no diagnosis of substance abuse could be provided. In August 2013, the RO granted service connection for PTSD with a 50 percent rating, effective January 22, 2011. The 50 percent rating was based on difficulty in adapting to work, inability to establish and maintain effective relationships, difficulty adapting to a worklike setting or to stressful circumstances, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, occupational and social impairment with reduced reliability and productivity, chronic sleep impairment, anxiety, suspiciousness, and depressed mood. Thus, the RO found that PTSD disability picture was consistent with the 50 percent rating criteria under DC 9411. In February 2016, the Veteran was afforded another VA PTSD examination at which time his diagnosis of PTSD was confirmed, and he was additionally diagnosed with alcohol use disorder. The examiner noted that Veteran's symptoms were only related to his PTSD as his alcohol use disorder is secondary to PTSD and appears to be in remission. It was further noted that the Veteran had gotten divorced from his wife in 2015 and that he currently lives with his brother and cousin. The Veteran reported having few friends and tends to spend most of his time alone or with his immediate family. Specifically, the Veteran reported avoiding crowds and spending a large portion of his free time at the gym or "lay[ing] around the house". He reported working full time as a security guard, got along with his coworkers, and denied any work-related difficulties. The examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner further noted that the Veteran stopped mental health treatment in late 2014 and was not seen in 2015 however, he resumed treatment in 2016. Additionally, it was reported that the Veteran had not been taking his prescribed medications until week prior to the VA examination. The examiner ultimately noted symptoms of depressed mood, anxiety, and chronic sleep impairment. Observationally, the Veteran's appearance was noted as casually dressed and well groom. The Veteran was polite and cooperative with appropriate eye contact. His speech was normal however his mood was "numb", and his affect was "constricted". The Veteran denied psychotic symptoms such as hallucination and delusions. He also denied experiencing any suicidal or homicidal ideations. Lastly, the examiner opined that he was capable of managing his own financial affairs. A psychiatry note from June 2016 indicates that the Veteran was prescribed Prazosin for the first time and the dosage of his Gabapentin was increased to assist in managing his PTSD symptoms. A follow up psychiatry note from August 2016 indicates some improvement in symptoms however, he still endorsed symptoms of anxiety, nightmares, and depression. In his July 2016 notice of disagreement (NOD) the Veteran reported continuing to experience panic and anxiety attacks, especially when in crowds with constant paranoia. As a result, the Veteran reported limiting his time spent outside of his house. Recurring flashbacks, severe dreams involving "live-like war combat" were also reported along with memory issues. Specifically, the Veteran reported "I have been getting in trouble for constantly forgetting to complete tasks". Lastly, he reported that his doctor had recently increase his dosage of medication for his PTSD symptoms and prescribed an additional medication. He concluded that he has consistently been unable to maintain personal relationships "because of the person the Iraq war [made] me" it turned him into an "isolate[d] soul]. The Board finds, that when compared to the evidence of record when the 50 percent rating was initially awarded for the PTSD in January 2011, the evidence at the time of the rating reduction showed no sustained material improvement of PTSD. Instead, the record shows that the Veteran's level of impairment has been relatively consistent. While the February 2016 examination report, which formed the basis for reduction in rating, concluded that the Veteran had occupational and social impairment due to mild or transient symptoms and noted only the symptoms of depressed mood, anxiety, and chronic sleep impairment, the preponderance of the evidence does not support a finding of sustained material improvement in the Veteran's condition. Specifically, the February 2016 examiner appears to have not fully considered the Veteran's other reported symptoms that are consistent with the medical evidence of record. During the February 2016 examination, the Veteran reported, and the examiner noted, isolation tendencies in which "he [participates in] few activities outside" of going to the gym, social relationship issues to include a recent divorce and frequent break ups with romantic partners, and lastly having few friends. However, the examiner did not include those symptoms in his report as symptoms of the Veteran's PTSD diagnosis. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address lay evidence, and the Board doesn't find the Veteran not credible or not competent to offer that evidence, the proper remedy is for VA to get a new exam). Furthermore, the February 2016 examiner appears to have disregarded the Veteran's employment history. The examiner noted "Veteran has no record of occupational impairment". This is in stark contrast to reports made during the July 2013 VA examination that the Veteran had over eight jobs during a two-year span due to repeated firings and resignations. See Swann v. Brown, 5 Vet.App. 229, 233 (1993) (Board may properly reject medical opinion where it is based on facts contradicted by the record). (Continued on the next page) Because the burden of proof is on VA to establish that a reduction is warranted by the preponderance of the evidence, and the preponderance of the evidence of record in this case shows no sustained material improvement in the Veteran's ability to function under the ordinary conditions of life and work at the time of the June 2016 rating reduction decision, the reduction of the 50 percent rating to 30 percent rating, effective September 1, 2016, was not proper. Restoration of the 50 percent disability rating is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, 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.