Citation Nr: 21074415 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-28 277 DATE: December 15, 2021 ORDER The rating reduction from 50 percent to 0 percent for posttraumatic stress disorder (PTSD), effective March 1, 2015, was improper and the 50 percent disability rating previously assigned from March 1, 2015 to June 26, 2017 is restored. REMANDED Entitlement to an increased rating in excess of 50 percent for PTSD prior to June 26, 2017; and in excess of 70 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The VA examination conducted in June 2014 was insufficient to support a reduction of the disability rating assigned for the Veteran's PTSD; moreover, the evidence shows that the Veteran did not experienced actual improvement of his PTSD for the period from March 1, 2015 to June 26, 2017. CONCLUSION OF LAW The reduction of the disability rating assigned for PTSD from 50 percent to 0 percent, effective March 1, 2015, was improper and the 50 percent disability rating previously assigned March 1, 2015 to June 26, 2017 is restored. 38 U.S.C. § 1155; 38 C.F.R. § 3.105. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1970 to February 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in December 2014 and January 2018 by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing. A transcript of that hearing is associated with the claims file. 1. The Rating Reduction from 50 Percent to 0 Percent for PTSD, effective March 1, 2015, was Improper and the 50 Percent Disability Rating Previously Assigned from March 1, 2015 to June 26, 2017 is Restored Where the reduction in the rating assigned for a service-connected disability or employability status is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance and setting forth all material facts and reasons must be prepared. The Veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and, will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The Veteran must also be informed that he or she 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 from 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). Notwithstanding the above, the United States Court of Appeals for Veterans Claims has indicated that there are several other general VA regulations that apply to all rating reductions, regardless of how long the disability rating at issue has been in effect. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Specifically, 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history. It also requires that for application of the rating schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Id. As to interpretation of examination reports, 38 C.F.R. § 4.2 requires that if the examination report does not contain sufficient detail, it is incumbent on the rating board to return the report as inadequate for evaluation purposes. The Court has also stated that examination reports on which the reduction are based must be adequate. Tucker v. Derwinski, 2 Vet. App. 201 (1992). 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in order for a rating reduction to be proper, the evidence must not only show that an improvement in a disability has actually occurred, but also, that such improvement reflects improvement in the ability to function under ordinary conditions of life and work. Id.; see also 38 C.F.R. §§ 4.2, 4.10. VA has the burden of establishing that the disability has improved. 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. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In Stern v. McDonough, No. 18-4425 (U.S. Vet. App. April 20, 2021) the Court held that reinstatement of the prior rating is warranted when such analysis is not conducted. As in this case, the matter before the Court involved the reduction of a rating that was in effect for less than five years. Although the Court acknowledged that there was actual improvement in the Veteran's conditions in Stern, and the special protections of 38 C.F.R. § 3.344 were not for application, VA was still required to determine whether there was actual improvement under the normal circumstances of life and work in accord with Brown, supra. The Court held that the "total failure to make the finding required by Brown is the type of error requiring reversal." By way of procedural history, a rating decision issued in July 2013, the Veteran was awarded service connection for PTSD. A 50 percent rating was assigned based on an initial May 2013 VA examination reporting a diagnosis of PTSD due to the Veteran's Vietnam combat experience. In November 2013, the Veteran submitted a VA Form 21-8940 (Veteran's Application for Increase based on Unemployability), wherein the Veteran reported that he is unable to work due to the service-connected PTSD and heart disabilities. Pursuant to his claim, he was examined by a VA psychologist in June 2014, who reviewed the Veteran's pertinent history contained in his claims file and directly interviewed the Veteran. Based on this, the VA psychologist determined that the Veteran presented a very inconsistent and contradictory account of his personal and psychiatric history, and that there was an "adequate history of his misrepresenting his symptoms to determine that he is not a credible source of information regarding his condition." To that end, the examiner indicated that "no symptoms were checked above, nor were other items selected above" to rate his functional status because of the described validity problems. The examiner further reported the diagnosis of PTSD was in error. The examiner then opined that it is less likely that the Veteran's mental health problems were related to his military service. Based on the above, the AOJ proposed reducing the Veteran's PTSD rating to a noncompensable rating in June 2014. He was notified of this proposal and his right to appear for a hearing and to submit additional evidence in the next 60 days. The Veteran elected a predetermination hearing before a Decision Review Officer (DRO). At his October 2014 DRO hearing, the Veteran explained that he had experienced difficulty in expressing his emotions to the June 2014 VA examiner. At the conclusion of the October 2014 DRO hearing, the DRO indicated that another VA examination "would be in order" to address the conflicting medical evidence. A new VA examination was not scheduled. In the December 2014 rating decision on appeal, the disability rating assigned for the Veteran's PTSD was reduced from 50 percent to 0 percent, effective from March 1, 2015. The Veteran perfected an appeal in which he disputed the propriety of the reduction. During the pendency of the appeal, the Veteran was afforded a VA examination in December 2017 wherein the examiner reported diagnoses of PTSD, unspecified depressive disorder, and alcohol and cannabis use disorders. The VA psychologist noted symptoms to include depressed mood, anxiety, chronic sleep impairment, flattened affect, 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, and suicidal ideation. The AOJ issued the January 2018 rating decision, also on appeal, in which the disability rating assigned for the Veteran's PTSD was increased to 70 percent effective June 26, 2017. In effect, the AOJ's decisions reduced the disability rating assigned for the Veteran's PTSD from 50 percent to 0 percent over the part of the appeal period from March 1, 2015 to June 26, 2017. The question on appeal is, therefore, whether reduction of the disability rating for the Veteran's PTSD from 50 percent to 0 percent, effective March 1, 2015, was proper. Medical records obtained and associated with the Veteran's claims file during the pendency of the appeal includes July 2017 correspondence from the San Jose Vet Center reporting a diagnosis of PTSD of a chronic and severe nature due to war-zone traumas in the Vietnam War. The therapist noted that the Veteran's symptoms include directly re-experiencing the traumatic event, isolation/withdrawal, recurrent/involuntary/intrusive distressing memories of the traumatic event, distressing nightmares of the traumatic event, anger issues, depression, trust issues, problems with communication, problems dealing with authority, irritability, anxiety issues, low-energy, poor concentration, focusing problems, and memory problems. The therapist noted these symptoms negatively affect the Veteran on a "24/7 basis." As noted above, the December 2017 VA psychologist noted a diagnosis of PTSD. Additionally, at the Veteran's August 2021 Board hearing, the Veteran's witness, D.R., testified that the Veteran's symptoms have progressively worsened "over the last six or seven years." Such directly and entirely contradicts the findings presented by the VA psychologist who examined the Veteran in June 2014. Based on the above, the Board does not find that a reduction was proper as an improvement in a disability has not actually been shown for the period from March 1, 2015 to June 26, 2017. The Board acknowledges that the June 2014 VA examiner questioned whether the Veteran suffers from PTSD. However, an error in diagnosis has not been clearly established. As the VA examination conducted in June 2014 was insufficient to support a reduction of the disability rating assigned for the Veteran's PTSD, doubt remains as to whether the Veteran's psychiatric disorder improved, to include whether a diagnosis of PTSD is warranted. The reduction of the disability rating assigned for PTSD from 50 percent to 0 percent, effective March 1, 2015, is improper. As such, the disability rating assigned for PTSD is restored to 50 percent, for the period from March 1, 2015 to June 26, 2017. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.31. REASONS FOR REMAND 1. Entitlement to an Increased Rating in Excess of 50 percent for PTSD prior to June 26, 2017; and in Excess of 70 Percent Thereafter is Remanded. The Veteran last received a VA examination to evaluate his PTSD in December 2017. During his August 2021 Board hearing, the Veteran testified that his PTSD had worsened. He reported increased social isolation, memory loss, and hypervigilance. The Veteran's witness, D.R., corroborated the Veteran's report of increased social isolation and testified that "he pretty much just shut everyone out." Describing the Veteran's symptoms, D.R. testified that for the last two or three years, "he's been very, very bad with it." As there is evidence of worsening of the Veteran's service-connected PTSD since the last examination, the Veteran should be afforded a new VA examination to assess the current extent and severity of such condition. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the Board finds that although treatment records from the San Jose Vet Center were obtained in November 2017, it appears there has been no further attempt to obtain updated records. As updated San Jose Vet Center records may be relevant to the claim on appeal, they should be obtained on remand. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (Vet Center records are created by VA and are constructively part of the record on appeal). 2. Entitlement to a TDIU is Remanded. The Board also finds that an inferred claim for a TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (When evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability). During his August 2021 Board hearing, the Veteran testified that he is unable to work due to the service-connected PTSD. Adjudication of a TDIU benefit requires consideration of the impact of all service-connected disabilities on a Veteran's ability to secure and follow substantially gainful employment. As there remains an open and outstanding claim relating to the Veteran's PTSD which may impact that determination, it would be premature and potentially prejudicial to the Veteran to adjudicate the TDIU claim at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all the Veteran's VA treatment records from the San Jose Vet Center from October 22, 2017 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made, why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b) (2) and 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current extent and severity of the service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.