Citation Nr: A21020132 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200702-94538 DATE: December 16, 2021 ORDER Effective September 1, 2019, restoration of a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to a TDIU is granted from September 21, 2015. FINDINGS OF FACT 1. The Veteran's 70 percent rating for PTSD had been in effect for more than five years at the time it was reduced. 2. The rating decision that reduced the Veteran's rating for PTSD from 70 to 50 percent was based on the results of one examination and the evidence of record did not clearly warrant the conclusion that sustained improvement had been demonstrated. 3. The evidence of record at the time the Veteran's rating for PTSD was reduced from 70 to 50 percent did not demonstrate improvement in his ability to function under the ordinary conditions of life and work. 4. Since September 21, 2015, the Veteran has been precluded from securing and following a substantially gainful occupation due to service-connected disabilities. CONCLUSIONS OF LAW 1. Restoration of a 70 percent rating for PTSD is warranted from September 1, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.6, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU are met from September 21, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1991 to October 1997 and in the United States Army from April 2001 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) from June 2019 and July 2019 rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In December 2015, a VA AOJ issued a rating decision that denied entitlement to a TDIU, following a September 21, 2015 claim for TDIU. In March 2016, the Veteran filed a timely Notice of Disagreement (NOD), as Statement of the Case was issued in May 2017, and the Veteran perfected his appeal in the legacy system. In May 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP) and elected to have his appeal considered under the Appeals Modernization Act (AMA) and elected the Supplemental Claim lane. See May 2018 RAMP Election. In a September 2018 RAMP rating decision, the AOJ continued the denial of a TDIU. In October 2018, the Veteran again opted into RAMP and elected to have his appeal considered under the AMA via the Supplemental Claim lane. A July 2019 rating decision denied his claim for a TDIU under the AMA. Additionally, a June 2019 rating decision reduced the Veteran's PTSD rating to 50 percent, effective September 1, 2019. In July 2020, the Veteran elected to appeal these 2019 rating decisions in the Hearing docket under the Appeals Modernization Act (AMA). See July 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (AMA NOD). In June 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The AMA provides that where a veteran selects the Hearing docket, the Board's decision will be based on the evidence of record at the time of the AOJ's rating decisions on appeal, evidence submitted by the Veteran at the Board hearing, and evidence submitted by the Veteran within 90 days following the Board hearing. 38 C.F.R. § 20.302(a). 1. Effective September 1, 2019, restoration of a 70 percent rating for service-connected PTSD is granted. The Veteran asserts that his 70 percent rating for PTSD should be restored. See June 2021 Board hearing transcript (Tr.) at 7; July 2020 AMA NOD. The Board agrees. The Veteran was in receipt of a 70 percent rating for PTSD from June 7, 2012, to September 1, 2019, with a temporary total evaluation in November and December 2014 due to hospitalization. See July 2021 Codesheet; 38 C.F.R. § 4.29. The Veteran's 70 percent PTSD rating was reduced to 50 percent effective September 1, 2019. See June 2019 rating decision. Congress has provided that a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when an AOJ reduces a veteran's disability rating without following the applicable regulations, the reduction is void ab initio (invalid from the beginning). See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). When reducing a 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; Brown v. Brown, 5 Vet. App. 413 (1993). Specifically, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation 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 at his or her latest address of record of the contemplated action and furnished detailed reasons for the proposed reduction. 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" as well as 30 days to request a predetermination hearing. See 38 C.F.R. §§ 3.105(e), (i). Where a rating has been in effect for more than five years, as is the case for the Veteran's PTSD, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. In Brown v. Brown, the Court identified general requirements that are applicable to all rating reductions. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Brown, 5 Vet. App. at 420; Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. 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 not merely a difference in the thoroughness of the examination or in use of descriptive terms, and whether the examination reports reflecting such change are based upon thorough examinations. See 38 C.F.R. § 4.13. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the observed improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000); Brown, 5 Vet. App. at 420-21; 38 C.F.R. §§ 4.2, 4.10. The Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted. See Brown, 5 Vet. App. at 413. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the AOJ at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Initially, the Board notes that the procedural requirements of 38 C.F.R. § 3.105 were followed and satisfied. In this regard, the record contains a September 2018 letter notifying the Veteran of the proposed reduction, his right to submit additional evidence and argument in response to the proposed reduction, and his right to a predetermination hearing regarding the proposed reduction. The Veteran did not request a predetermination hearing, but he did notify the AOJ of additional relevant treatment records at a VA facility. See June 2019 rating decision. Thus, this matter turns on whether the substantive requirements were satisfied before effectuating the rating reductions. As already noted, where a rating has been in effect for more than five years, such as the Veteran's PTSD, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued and ratings on account of diseases subject to temporary or episodic improvement, such as PTSD, will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. Here, the June 2019 rating decision that reduced the Veteran's PTSD rating from 70 to 50 percent was based on the results of one examination conducted in July 2018, and the evidence of record does not clearly warrant the conclusion that sustained improvement had been demonstrated. In this regard, the July 2018 examination indicates the same level of occupational and social impairmentreduced reliability and productivityas was indicated in a prior October 2016 examination, demonstrating the Veteran's PTSD in 2018 caused the same level of impairment as when he had a 70 percent rating. In addition, the 2018 examiner noted symptoms nearly identical to those documented in 2016, with the only difference being that instead of difficulty establishing and maintaining effective relationships, the examiner instead noted impaired judgment. The 2018 examiner also noted that the Veteran's results on the Beck Depression Inventory fell in the severe range, again demonstrating that sustained improvement had not been achieved. Furthermore, VA mental health treatment records also reveal that the Veteran's symptoms did not demonstrate sustained improvement at the time the AOJ reduced his PTSD rating from 70 to 50 percent and, in fact, his treatment records demonstrate symptoms consistent with the 70 percent level. See June 2019 VA mental health outpatient note (considered in the AMA rating decision on appeal and noting occasional suicidal ideation and describing his condition as severe); May 2019 VA mental health outpatient note (noting some suicidal ideation that is "long term and comes and goes" and psychiatric medication was increased); March 2019 VA mental health nursing note (noting increased dose of psychiatric medication); March 2019 VA mental health nursing note (reporting increased depression and anxiety and "fleeting thoughts of suicide"); February 2019 VA mental health nursing note (noting suicidal thoughts); September 2018 VA mental health outpatient note (indicating the Veteran "has been having more suicidal thoughts" and had a plan); Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Moreover, the presence of suicidal ideation demonstrates that the Veteran's ability to function under the ordinary conditions of life and work had not improved, as suicidal ideation is suggestive of "occupational and social impairment with deficiencies in most areas." See Bankhead, 29 Vet. App. at 20; Faust, 13 Vet. App. 342; Brown, 5 Vet. App. at 420-21; 38 C.F.R. § 4.10. In sum, the Veteran's 70 percent rating for PTSD had been in effect for more than five years at the time it was reduced. The reduction, however, was based on one examination and the evidence of record did not clearly warrant the conclusion that sustained improvement had been demonstrated. Furthermore, the evidence of record did not demonstrate an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Accordingly, the Veteran's 70 percent rating for PTSD is restored effective September 1, 2019. 2. Entitlement to a TDIU is granted from September 21, 2015. The Veteran asserts that he is unable to secure and follow a substantially gainful occupation due to the collective impact of his service-connected disabilities. See June 2017 VA Form 9; March 2016 Notice of Disagreement; VA Forms 21-8940. The Board agrees. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran is service-connected for PTSD (70 percent from January 1, 2015), TBI (10 percent from July 9, 2007) tension headaches (0 percent from July 19, 2007 and 50 percent from June 14, 2021), peripheral neuropathy of the left upper extremity (20 percent from February 26, 2014), tinnitus (10 percent from May 6, 2011), cervical spine disability (10 percent from February 26, 2014), left and right knee disabilities (10 percent from June 7, 2012), lumbar strain (10 percent from November 20, 2015), seasonal allergic rhinitis (0 percent from July 19, 2007), and right upper extremity radiculopathy (0 percent from November 20, 2015). His combined total rating is above 70 percent since the date of his September 21, 2015 TDIU claim; thus, schedular TDIU is for consideration over the entire appeal period. The Veteran last worked full-time in November 2008 and he has not earned income from employment since that time. See Tr. 4; September 2015, February 2014, and June 2012 VA Forms 21-8940; October 2015 and August 2012 VA Forms 21-4192; August 2015 C&P PTSD examination; Social Security Administration (SSA) Work History Report. Accordingly, the economic component of entitlement to a TDIU is met over the entire appeal period, or from September 21, 2015. See Ray, 31 Vet. App. at 73. Turning to the noneconomic component, the Veteran has a high school degree. See September 2015 VA Form 21-8940; Medical Treatment Records-Furnished by SSA. His work history includes jobs in shipping, car sales, and as a pharmacy technician. See SSA Work History Report; VA Forms 21-8940 and attached correspondence. His military occupational specialty in service was healthcare specialist and he worked as a hospital corpsman and medic. See DD Form 214; SSA Work History Report. Accordingly, the Board will focus on how the Veteran's service-connected disabilities impact his ability to perform work consistent with this employment history and education. The Board finds that, when affording the Veteran the benefit of the doubt, the evidence of record demonstrates that the Veteran is precluded from securing and following a substantially gainful occupation consistent with his employment history and education due to his service-connected disabilities, particularly his PTSD, back disability, and neck disability with associated neurological impairment, over the entire appeal period, or from September 21, 2015. In this regard, the Board notes that the Veteran's work history consists of public-facing jobs that involve substantial amounts of time interacting with clients, customers, and colleagues. Furthermore, the Veteran's work history in healthcare settings would require significant involvement with patients and sometimes under stressful conditions. In addition, his employment history in healthcare settings and shipping departments would involve a significant amount of physical work. The Board finds the Veteran's service-connected disabilities would render him unable to secure and follow a substantially gainful occupation in both physical and sedentary-type positions. In this regard, the Board emphasizes that the Veteran is in receipt of SSA disability benefits from December 2008 due solely to service-connected disabilities, including PTSD. See SSA Decision. While the Board is not bound by SSA's determination, it is persuasive evidence of unemployability due to his service-connected disabilities. Regarding PTSD, the November 2014 VA examiner opined that the Veteran's PTSD "would be expected to cause the corresponding functional deficits in sedentary and/or physical type occupational settings" to a moderate extent: irritability or outbursts of anger, hypervigilance, exaggerated startle response and detachment or estrangement. The same examiner further noted that the Veteran's PTSD symptoms would moderately impair his "ability to work cooperatively and effectively with co-workers and supervisors and the public" and "to understand, follow, and retain instructions, and to maintain task persistence and pace" due to insomnia, hypervigilance, recurrent and distressing recollections of the traumatic events, and intense psychological distress at exposure to internal or external cues that symbolize or represent an aspect of the traumatic event. Difficulty in establishing and maintaining effective work relationships and difficulty in adapting to stress at work were also endorsed by the August 2015 examiner, who additionally noted that the Veteran "reported serious thoughts of suicide (without plan or intent)" in the recent past. Moreover, as noted in the section discussing the propriety of the PTSD rating reduction, multiple treatment records document the presence of suicidal ideation, which is indicative of an inability work due to PTSD. Moreover, the Board emphasizes that the Veteran's PTSD symptomatology was so severe in 2014 that it resulted in his hospitalization, which also contributes to a finding of unemployability. Additionally, in October 2018, a VA psychiatrist noted the Veteran's self-report of an inability to even work part-time due to PTSD, and indicated that he would "write down" this statement in the Veteran's treatment notes, which implies the clinician's endorsement of unemployability due to PTSD. Regarding the Veteran's lumbar spine disability, the November 2015 VA examiner determined the condition minimally negatively impacted his ability to perform heavy lifting, repetitive bending and prolonged sitting and standing in terms of physical labor; regarding sedentary occupations, the examiner indicated that the Veteran would be minimally precluded from sitting for long periods without moving. Regarding his neck disability, the November 2015 VA examiner determined the condition would severely impact his ability to lift or carry, or use his upper extremities for strenuous and/or repetitive activity in terms of physical labor, and would moderately impact his ability to flex his neck while working at a desk from a sedentary occupational standpoint. The Board finds that, when considering all of the above-cited evidence in its totality and affording the Veteran the benefit of the doubt, entitlement to a TDIU is warranted from September 21, 2015. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.