Citation Nr: 21072664 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-06 873 DATE: December 3, 2021 ORDER The reduction of the rating from 70 percent to 50 percent for posttraumatic stress disorder (PTSD) was not proper. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDING OF FACT The reduction of the disability rating from 70 percent to 50 percent, effective December 1, 2017, for the Veteran's service-connected PTSD, effective December 5, 2012, was improper because the Veteran was not afforded a personal hearing on the reduction that he had requested. CONCLUSION OF LAW The reduction of the 70 rating, effective December 1, 2017, for the Veteran's service-connected PTSD was not proper, and the 70 percent rating is restored effective December 1, 2017. 38 U.S.C. § 1155; 38 C.F.R. § 3.105 (e), 3.344, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1983 to August 1987. The matters on appeal arise from a September 2017 rating decision. The Veteran testified at a Board of Veterans' Appeals (Board) Hearing before the undersigned Veterans Law Judge in December 2021. Under Rice, the Board has jurisdiction over the TDIU claim, and for the purpose of clarity, has separately captioned the issue on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Procedural Safeguards Regarding Reductions There are specific particularized notice requirements that apply in cases where the issue is a reduction in rating. These procedural safeguards afforded to the claimant set forth under 38 C.F.R. § 3.105 (e) are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105 (e), initially, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefor. 38 C.F.R. § 3.105 (e). The beneficiary must be given 60 days for presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, 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 beneficiary of the final rating action expires. In addition, the Veteran is to be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105 (h). These are such important safeguards that the United States Court of Appeals for Veterans Claims has held that where VA has reduced a veteran's rating without observance of applicable law and regulation, such a rating is void ab initio. Brown v. Brown, 5 Vet. App. 413, 422 (1993). Thus, to remedy such cases, the decision must be reversed as unlawful. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). 1. The reduction of the rating from 70 percent to 50 percent for posttraumatic stress disorder (PTSD) was not proper. A September 2017 rating decision officially reduced the rating for PTSD from 70 percent to 50 percent, effective December 1, 2017. In response to the May 2016 notification of the proposal to reduce the rating, the Veteran requested a personal hearing to present evidence or argument on the proposed reduction. See June 2016 Veteran's Statement. However, the Regional Office failed to afford the Veteran a personal hearing on the proposed reduction. A reduction is void ab initio when the Board affirms a reduction of a veteran's disability rating without observing the applicable VA regulations. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). Applicable laws and regulations provide that a veteran must be notified of the proposed reduction where it would reduce the combined evaluation. 38 C.F.R. § 3.105 (e). VA did not provide proper notice of the rating reductions per 38 C.F.R. § 3.105 (e). Therefore, the reduction was improper, and the 70 percent rating for PTSD is restored effective December 1, 2017. Furthermore, here, a 100 percent rating is not warranted at any point in the appeal period for PTSD, as the preponderance of the evidence is against a finding of total occupational and social impairment. See June 2015, July 2016, and September 2017 Review Post Traumatic Stress Disorder Disability Benefits Questionnaires. No examiner found, no medical records show, and the Veteran himself did not assert, that the Veteran experienced any symptom specifically contemplated under the 100 percent rating of DC 9411, to the requisite levels of frequency, severity, and duration that would allow for a higher rating of 100 percent for this period. See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013). Therefore, a rating in excess of 70 percent for PTSD is not warranted at any point in the appeal period. REASONS FOR REMAND 1. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. The record shows that the Veteran has expressed that his PTSD-related symptoms have affected his ability to work. Given that there is no present medical opinion of record which specifically addresses the Veteran's employability, the Board finds that a remand is necessary in order to ascertain a medical opinion regarding the Veteran's capability to perform the physical and mental acts required by employment. The matters are REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination to obtain information as to the Veteran's functional impairment as to his service-connected disabilities in relation to his employability. 2. The examiner should interview the Veteran as to his employment and educational history and provide a detailed history in the opinion. The examiner should provide an opinion as to whether the Veteran's service-connected disabilities preclude employment consistent with the Veteran's education and occupational experience, without taking into account his age or any non-service-connected disability. The examiner should set forth a rationale for the conclusions reached. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.