Citation Nr: 21006226 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-15 256 DATE: February 3, 2021 ORDER For the period from February 1, 2017, a 100 percent rating for posttraumatic stress disorder (PTSD) is restored. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. At the time of the November 2016 rating decision that reduced the rating for the Veteran’s PTSD from 100 percent to 50 percent, the evidence of record did not establish improvement in the Veteran’s overall functional impairment or in the frequency and severity of the symptomatology associated with his PTSD. 2. Effective November 27, 2012, the Veteran’s PTSD is rated 100 percent, tinnitus rated 10 percent, and bilateral hearing loss rated 0 percent; the preponderance of the evidence is against finding that the Veteran is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities other than PTSD. CONCLUSIONS OF LAW 1. The reduction in the rating for PTSD from 100 percent to 50 percent effective February 1, 2017, was improper, and restoration of the 100 percent rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 2. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to December 1969. He testified before the undersigned Veterans Law Judge (VLJ) at a November 2019 videoconference hearing. A transcript of the proceeding is of record. In a pre-hearing conference, the undersigned VLJ clarified the issues on appeal and inquired as to whether there is additional evidence to be submitted. With respect to the Board hearing, the undersigned VLJ explained the concepts of rating restorations and evaluations, and total disability rating due to individual unemployability. Testimony on the elements necessary to substantiate the appeal was elicited. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. 1. Restoration of a 100 percent disability rating for PTSD. The Veteran is challenging the reduction of the disability rating assigned for PTSD. after reviewing the evidence, the Board concludes that restoration of a 100 percent evaluation for PTSD is warranted. In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13. In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. Hohol v. Derwinski, 2 Vet. App. 169 (1992). However, if the rating was continued in order to see if improvement was in fact shown, the comparison point could include prior examinations as well. Collier v. Derwinski, 2 Vet. App. 247 (1992). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). The Board notes that VA benefits recipients are to be afforded greater protections in instances where a rating has been in effect at the same level for more than 5 years. 38 C.F.R. § 3.344 (a)-(c). Here, the Veteran was granted a 100 percent rating for PTSD in a December 2013 rating decision, effective November 27, 2012. The rating was then reduced effective February 1, 2017. As such, the Veteran’s ratings were in effect at the same level for less than five years, and thus the greater protections for benefits in effect for longer than five years are inapplicable in this case. See 38 C.F.R. § 3.344 (c). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107 (a); see also Brown, 5 Vet. App. at 421. As an initial matter, the Board must determine whether the Regional Office (RO) followed the applicable due process procedures for reducing a rating. First, the RO issued the proposed rating reduction on May 2, 2016. The Veteran was notified of this contemplated action by letter dated May 5, 2016, was furnished detailed reasons for the proposed reduction, and was given 60 days for the presentation of additional evidence to show that his rating should be maintained. The May 5, 2016 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if such a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105 (i). The Veteran submitted additional evidence within 60 days and did not request a predetermination hearing. The RO thereafter issued the November 2016 rating decision, which reduced the rating for the Veteran’s PTSD from 100 percent to 50 percent, effective February 1, 2017. Notice of this rating decision, plus his appeal rights, was sent to the Veteran in a letter dated November 11, 2016. The February 1, 2017 effective date of the reduction was greater than the last day of the month in which a 60-day period from the date of the November 5, 2016 notice expired. Thus, all due process requirements were met in the rating reduction. See 38 C.F.R. §§ 3.105 (e), (i). Next, the Board must determine whether the reduction was proper. A reduction of a rating that has been in effect for less than five years is warranted where re-examination discloses improvement. See 38 C.F.R. § 3.344 (c). However, as stated above, to warrant a reduction the evidence of record must show not only an improvement in the disability level, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. 38 U.S.C. § 5107 (a); Brown, 5 Vet. App. at 421. A review of the totality of the medical and lay evidence does not persuade the Board that the Veteran’s PTSD symptomatology had improved at the time the rating was reduced, or that there was improvement in the Veteran’s ability to function under the ordinary conditions of life and work. The Veteran’s PTSD is rated under Diagnostic Code 9411. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 100 percent disability rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 50 percent disability rating is warranted for 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The initial 100 percent rating was assigned following an October 2013 VA PTSD examination. Regarding his family, the Veteran reported that he had been married for 44 very rough years and that they had separated a couple of times due to his PTSD symptoms, and that he was estranged from his sister due to PTSD. He also reported no care for life, that he has uncontrolled rage and punches holes in walls, and that he hears voices at times that are unclear. Symptoms applicable to the Veteran’s PTSD were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, 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 work-like setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and persistent delusions or hallucinations. The examiner assigned a global assessment functioning (GAF) score of 50 for panic attacks and the Veteran’s report that he doesn’t want to go on living. The examiner concluded the Veteran’s symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran was reexamined in April 2016, and his wife was present at the examination. The Veteran and his wife reported that their marriage had been rocky. He reported a good relationship with his children and two close friends and that he enjoys drag racing. He reported that he feels depressed more days of the week than not, that he had lost some interest in previously enjoyed activities especially when there are crowds, that his concentration had worsened, and that he had difficulty getting to sleep. He denied current or past suicidal or homicidal ideation. He reported that he sometimes sees things out of the corner of his eye and is sensitive to sounds, and that he gets spooked easily. The Veteran’s memory was grossly intact, but he required cueing to recall one of the three more recent presidents and one of the three words presented to him. Symptoms applicable to the Veteran’s PTSD were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work-like setting. The examiner determined the Veteran had moderate symptoms overall, that anxiety and depression were secondary to PTSD, and assigned a GAF score of 62. The examiner concluded the Veteran’s symptoms caused occupational and social impairment with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He was provided another VA examination for PTSD in October 2016. The Veteran and his wife reported that their marriage was fine, that he rarely has strong verbal outbursts with his wife, and that he has learned how to escape in contrast to blowing up like he had in the past. He reported half a dozen close friends and more causal friends. He also reported road rage and that he avoids conflicts with others, but that his attitude with others can change quickly, and anger management concerns contribute to him avoiding others. He felt uncomfortable in large crowds and his wife described him being hypervigilant in public settings. When asked about problems at work, he noted that he would have arguments with management and other coworkers, and that there was one physical altercation with a coworker. He retired in 2010. The Veteran’s primary complaints related to fatigue, increased forgetfulness, anxiety, panic attacks, suicidal ideation, risky behaviors, concerns about home security, diminished appetite, and diminished work ethic/endurance. He reported depression on average 7 times per month, anxiety several times per week, and that he has lost some interest in activities. Concentration was good but not as good as it used to be, and that his sleep was disrupted. He denied current suicidal ideation, but he noted that he has had relevant thoughts in the past. The symptoms the examiner noted were applicable to the Veteran’s PTSD were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. The examiner determined the Veteran’s symptoms caused occupational and social impairment with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Based upon the April 2016 examination report, the decision to reduce the rating for PTSD appears partially supportable. The April 2016 examiner attributed far fewer symptoms to the Veteran’s PTSD than the initial October 2013 examiner. Specifically, the October 2013 examiner attributed mild memory loss, difficulty in understanding complex commands, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and persistent delusions or hallucinations to PTSD. The April 2016 examiner did not attribute these symptoms to PTSD. We acknowledge that Veteran denied suicidal and homicidal ideation at the April 2016 and October 2016 examinations, and no periods of violence were specifically noted in the examination report. However, careful review of these examination report reveals contradictory information regarding the Veteran’s reported symptoms and the symptoms the examiner checked off as applicable to PTSD. Specifically, the Veteran reported some of the missing symptoms at the April 2016 examination. For example, although the April 2016 examiner did not attribute any hallucinations to PTSD, the Veteran reported both visual and audiologic hallucinations at the April 2016 examination. The Veteran also reported both memory and concentration difficulties at the April 2016 examination. While neither examiner did not note any irritability or violence, irritable behavior and angry outbursts were noted under Diagnostic Criterion E supporting the Veteran’s diagnosis of PTSD. The Diagnostic Criterion also note problems with concentration, absent from the symptoms attributable to the Veteran’s PTSD. There is little to no explanation within the April 2016 or October 2016 examination report that would account for these discrepancies. Pertinently, all three VA examiners prior to the rating reduction determined the Veteran’s PTSD symptoms caused the same level of occupational and social impairment. However, that each VA examiner estimated that the Veteran’s PTSD caused the same level of impairment indicates that his PTSD symptoms did not actually improve between the October 2013, April 2016, and October 2016. The April 2016 examiner also provided a GAF score of 64, suggesting a lower level of impairment compared to the October 2013 GAF score of 50. However, effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replaced those references with references to the more recently updated “DSM-5,” which abandoned the use of GAF scores. The Board is cognizant that the GAF score is relevant when reviewing the October 2013 VA examination report. However, the April 2016 VA examination was provided well after August 4, 2014. The Veteran’s claim was also certified to the Board after August 4, 2014. As the rating reduction is governed by the DSM-5, the GAF score assigned in the April 2016 examination is not persuasive evidence that a reduction was warranted. The Veteran has also provided additional lay and medical evidence in support of keeping the 100 percent evaluation for PTSD. In a June 2016 written statement, the Veteran reported reclusiveness at church, suicidal ideations two to three times per week, and homicidal ideations during confrontations with others. He also reported obsessions with racecars and that he does not have an interest in his grandchildren. A letter from Dr. T.D., the Veteran’s VA psychiatrist, states that the Veteran’s PTSD symptoms are at the highest level, and that a 100 percent rating should be continued based on the severity, and longevity of the PTSD with little response to treatment. Another letter from Dr. G.W.D., the Veteran’s VA psychologist, states that the Veteran had difficulty with social isolation, low levels of trust, anxiety, irritability and anger, and frequent trauma thoughts, and that the Veteran relied on his wife for daily interactions with others. Dr. G.W.D. determined the Veteran’s PTSD symptoms significantly impact his social and occupational functioning, that he considered the Veteran unemployable, and that the Veteran’s disability rating should remain at 100 percent. We note that both doctors had treated the Veteran since 2012. In sum, we find that the decision to reduce the rating during this rating period was not based on actual improvement in the Veteran’s level of disability or any improvement in his ability to function under the ordinary conditions of life and work. Rather, the relevant VA examination reports show that the Veteran was remarkably consistent in reporting his PTSD symptoms and their impact on his ability to function. Each examiner estimated that his PTSD symptoms caused him the same level of impairment. His symptoms reflected on the examination reports suggest a fairly constant state of social and occupational impairment. The Board finds the statements made by the Veteran, both in connection with this claim and during the VA examinations of record, to be generally credible as to the severity of his symptoms. As explained above, there was little improvement in the Veteran’s PTSD demonstrated by the April 2016 or October 2016 VA examinations when compared to the initial October 2013 examination. Accordingly, the Board concludes that the reduction of the Veteran’s rating for PTSD from 100 percent to 50 percent was not based on an examination that demonstrated improvement in the Veteran’s symptoms. A 100 percent evaluation for PTSD is restored effective February 1, 2017. 2. Entitlement to a TDIU. The Veteran seeks a total disability rating based upon individual unemployability (TDIU). Given our restoration of a 100 percent rating for PTSD, and the documented lack of occupational impact from the Veteran’s service connected hearing disabilities, TDIU must be denied.. It is established VA policy that Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” See 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). In the June 2016 VA Forms 21-8940, the Veteran asserted that his PTSD prevented him from securing or following any substantially gainful occupation. As explained above, the Board has restored a 100 percent rating for the Veteran’s PTSD. Such rating has been in continuous effect since November 27, 2012. The Veteran is also service connected for tinnitus rated as 10 percent disabling and bilateral hearing loss rated as 0 percent disabling. 38 C.F.R. § 4.16 (a) provides that a TDIU is only warranted where the schedular rating is less than total. However, as the Court of Appeals for Veterans Claims has explained, the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280, 291-92 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court recognized that a separate award of a TDIU may form the basis for an award of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) and that it might benefit a Veteran to obtain a TDIU rating, even where a 100 percent schedular rating has also been granted. Id. In this case, the Veteran is in receipt of a 100 percent rating for PTSD. He asserts only that his PTSD impacts him occupationally. As noted, he is also service connected for tinnitus rated as 10 percent disabling and bilateral hearing loss rated as 0 percent disabling. The functional impact of the hearing loss and tinnitus is minimal and does not render the Veteran unable to secure or maintain a substantially gainful occupation. Notably, the Veteran does not argue otherwise. He has consistently maintained that only his PTSD renders him unemployable. There is no indication that the Veteran’s hearing disabilities cause any occupational functional impact beyond the evaluations assigned. Since a total evaluation is assigned for PTSD, pursuant to 38 C.F.R. § 4.16(a) that disability will not be considered in determining whether a TDIU is warranted. Nothing in the treatment or examination record suggests any of the Veteran’s other service-connected conditions have significant functional impact. The treatment record and available lay statements supports the theory that the Veteran’s PTSD is the only service-connected disability causing significant functional impact. Indeed, the Veteran’s VA psychiatrist and psychologist have provided letters stating that his PTSD alone renders him unemployable. However, it is largely uncontroverted that the Veteran’s service-connected disabilities other than PTSD cause no significant occupational impact. Given the evidence of record, the Board is unable to determine that the Veteran's service-connected disabilities besides PTSD prevent him from securing and following a substantially gainful occupation. A TDIU based on disabilities other than PTSD is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.