Citation Nr: 21074911 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-25 076 DATE: December 16, 2021 ORDER Restoration of the 100 percent rating for posttraumatic stress disorder (PTSD), effective July 1, 2016, is granted, subject to the law and regulations governing payment of monetary benefits. FINDING OF FACT The preponderance of the evidence fails to establish that the RO's decision to reduce the Veteran's rating for PTSD complied with the applicable regulations. CONCLUSION OF LAW The June 2016 rating decision that reduced the rating for PTSD from 100 to 0 percent was improper, and restoration of the 100 percent disability rating from July 1, 2016, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.71a, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2002 to October 2007. This case comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran filed a timely notice of disagreement and March 2017 rating decision granted a 10 percent rating effective July 13, 2016 and a 50 percent rating effective November 28, 2016. A March 2017 statement of the case (SOC) characterized the issue on appeal as a staged rating but includes the reduction issue based on language in the body of the decision. As such, the Board concludes that it currently has jurisdiction over the reduction issue. On his May 2017 Substantive Appeal, VA Form 9, the Veteran requested a Board hearing and, in July 2019, he was given notice of an August 2019 videoconference hearing. The Veteran subsequently failed to appear for his hearing. The record reflects that he had an active arrest warrant in March 2019 and was arrested in April 2019 but was released the next day. The Veteran's hearing was scheduled in August 2019, at a time when he had no warrants and was not incarcerated. The Veteran failed to report for the hearing without good cause, and neither he nor his representative made a motion to reschedule based on good cause. Thus, the Board finds that there is no good cause to reschedule the hearing and will proceed with adjudication. Rating Reduction A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). Generally, when reduction in the rating of a service-connected disability is contemplated and the lower rating would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation and pension. The provisions of 38 C.F.R. § 3.344(c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating. Under 38 C.F.R. § 3.344(a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413, 419 (1993). The provisions of 38 C.F.R. § 3.344(a) and (b) further provide certain procedural protections to a Veteran in regard to reductions of rating ratings. As noted above, the regulation is applicable if the rating was in effect more than five years; otherwise, 38 C.F.R. § 3.344(c) is applicable. Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 he is entitled to retain the higher rating; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, supra; Kitchens, 7 Vet. App. 320 (1995). Whether the disability rating for the Veteran's service-connected PTSD was properly reduced from 100 percent to 0 percent, effective July 1, 2016 As an initial matter, 38 C.F.R. § 3.344 (a) and (b) are applicable in this case. The Veteran's 100 percent rating for his PTSD was assigned beginning September 22, 2009. Thus, the 100 percent rating was in effect for greater than 5 years as of July 1, 2016. When a rating has continued for five years or more, a reduction may be accomplished when the evidence clearly warrants the conclusion that sustained improvement has been demonstrated, and when the rating agency determines that it is reasonably certain that the improvement will be maintained under the ordinary conditions of the Veteran's life. 38 C.F.R. § 3.344(a). Further, "[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction." Id. Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b). The Board finds that the proper findings for rating reductions were not made in this case. Specifically, the Board notes that under Faust, two findings are necessary in this case in order for the reductions to be proper: (1) that an improvement in the disability has actually occurred; and, (2) that improvement reflects an improvement in the Veteran's ability to function under the ordinary conditions of his life and work. The Veteran's 100 percent evaluation for his PTSD was assigned based on evidence of total occupational and social impairment. Specifically, the Veteran demonstrated PTSD symptoms of sleep disturbance, a flattened affect, depression, sleep impairment, panic attacks, homicidal ideation with episodes of violence and wanting to harm people, and poor personal hygiene. In the March 2016 rating decision that proposed the reduction, the RO noted that the Veteran failed to report for his examination. In the June 2016 rating decision that finalized the reduction, the RO assigned a noncompensable evaluation due to symptoms that were not severe enough either to interfere with occupational and social functioning or to require continuous medication. However, at the time of the reduction, the Board does not find that adequate consideration was given to the issue of whether there was an improvement in the Veteran's ability to function under the ordinary conditions of life and work. More specifically, the action to reduce the ratings did not address these disabilities in the context of the Veteran's functioning in life and work. Therefore, the Board is unable to adequately assess the propriety of the reduction in this case with respect to the second prong under Faust; namely, whether the improvement reflected an improvement in the Veteran's ability to function under ordinary conditions of life and work. Without such an explicit finding, the Board finds that it cannot properly analyze the rating-reduction issue currently on appeal. The Board therefore finds that the reduction of the Veteran's disability rating for his nephrolithiasis is void ab initio due to the lack of proper findings as to the second prong under Faust as noted above. As the Board can therefore not conclude that a preponderance of the evidence supports the reduction, the Veteran's 100 percent rating for his disability is restored. See 38 C.F.R. § 3.344(c); Faust, supra. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.