Citation Nr: 21007906 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-48 805 DATE: February 11, 2021 ORDER From November 1, 2015, to the present, restoration of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed under the legacy appeals system. FINDINGS OF FACT 1. The December 2014 VA examination, which served as the basis for the reduction in the Veteran’s disability rating, did not demonstrate an improvement in the Veteran’s ability to function. 2. In August 2020, the Veteran opted into the modernized review system for his claim for an increased rating for PTSD; a determination on that issue will impact the claim for entitlement to a TDIU. CONCLUSIONS OF LAW 1. From November 1, 2015, to the present, the criteria for restoration of a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.130, DC 9411. 2. The issue of entitlement to a TDIU must be dismissed under the legacy appeals system to allow for it to be considered alongside the AMA appeal for entitlement to an increased rating for a TDIU. 38 C.F.R. § 19.2. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to January 1972, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Army Commendation Medal and Vietnam Campaign Medal with two Overseas Service Bars. He offered testimony during a February 2019 travel board hearing. A transcript of this proceeding has been associated with the record. These appeals were then remanded by the Board in May 2019 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At that time, the Board also remanded a claim seeking a higher rating for PTSD. This matter was then addressed in a June 2020 Supplemental Statement of the Case (SSOC) and July 2020 rating decision. Thereafter, the Veteran submitted a notice of disagreement to the Board in August 2020 as to this issue. This submission constitutes a valid opt-in to the modernized review system (known by the Board as AMA). 38 C.F.R. § 19.2. Accordingly, the Veteran’s increased rating appeal will be addressed in a separate AMA decision. The impact of this opt-in is discussed more fully below. Rating Reduction The Veteran is currently seeking the restoration of a 70 percent rating for his service-connected PTSD from November 1, 2015, to the present. 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 therefor. The beneficiary must then 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). The above procedural requirements have been met in this case. Historically, the Agency of Original Jurisdiction (AOJ) proposed to reduce the Veteran’s rating from 70 to 50 percent in a June 2015 rating decision. Therein, the AOJ set forth the material facts and reasons for this proposal. The Veteran was notified of the proposed reduction that same month in a letter which further detailed the reasons therefor. He was subsequently provided with more than 60 days to produce evidence that his rating should not be reduced. In an August 2015 rating decision, the proposed reduction was effectuated from November 1, 2015. Thus, the Board must determine whether the standards for reduction have been met in this case. The central inquiry here is whether the disability at issue had improved. However, the standards for reduction differ according to the length of time the former rating was in effect, and whether the disability was formerly evaluated as 100 percent disabling. Specifically, 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by any change of medical findings or diagnosis, in order to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of the veteran’s life. 38 C.F.R. § 3.344(a). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which 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. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344. The issue is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). As the Veteran’s 70 percent rating was in effect for less than five years, the standard here is whether an adequate reexamination was conducted which disclosed improvement in the disability. Id. Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA 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 also Brown v. Brown, 5 Vet. App. 413 (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 (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 upon 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 a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). Here, it is found that the December 2014 VA examination, upon which the rating reduction was based, is inadequate, and that the evidence did not reflect an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Critically, the examiner provided conflicting responses as to whether the Veteran’s claims file was reviewed in conjunction with his examination. Specifically, the examiner reported that the Veteran’s VA claims file was not reviewed; however, it was also documented that his e-folder was reviewed. The examiner then identified a series of earlier VA examinations as the collateral sources reviewed at that time, without additional reference to the Veteran’s treatment records. Additionally, VA treatment records do not support a finding that the Veteran demonstrated an improvement to his disability at that time. Rather, he continued to experience such symptoms as mood disturbances, chronic sleep impairment, and mild memory loss which limited his social and occupational functioning. He consistently required treatment via medication and therapy, but did not report or otherwise reflect any significant change to his disability picture at that time. Instead, his VA treatment providers repeatedly reported the Veteran’s history of chronic symptoms, without remission. As per the Veteran’s own competent and credible testimony, he did not experience an improvement to his condition during the period on appeal. See, e.g., February 2019 hearing transcript; Layno v. Brown, 6 Vet. App. 465, 469 (1994); Miller v. Wilkie, 32 Vet. App. 249 (2020). There is no contradictory evidence of record, other than the findings of the December 2014 VA contract examiner. In sum, the December 2014 VA contract examination is inadequate upon which to base a reduction of the Veteran’s disability evaluation. Although it can reasonably be interpreted that the contract examiner reviewed the Veteran’s electronic claims file in providing his assessment, it can also reasonably be interpreted that only limited evidence, including prior VA examinations, were reviewed at that time. Further, the remaining evidence does not definitively establish an improvement to the Veteran’s disability around the time of the examination, to include per the Veteran’s own competent reporting. In reviewing this evidence in the light most favorable to the Veteran, it is found that the preponderance of the evidence is for the appeal and the reduction was not proper. Accordingly, restoration of a 70 percent rating for the Veteran’s psychiatric disability is warranted from November 1, 2015, to the present. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102. Upon such a finding, the Board declines to offer further analysis into the Veteran’s entitlement to a rating greater than 70 percent for his PTSD during the period on appeal, as this matter is properly embodied in the pending AMA appeal. TDIU As noted previously, when this case first came before the Board in May 2019, the Board remanded all issues before it. At that time, the issues included the claims of entitlement to a restoration of a 70 percent rating for PTSD, entitlement to an increased rating for PTSD, and entitlement to a TDIU. Following additional development, the RO issued a rating decision in July 2020 that denied entitlement to an increased rating claim for PTSD and entitlement to a TDIU. The RO issued a SSOC as to all three issues remanded by the Board that same month. In August 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran listed only the PTSD issue on this notice of disagreement. As this notice of disagreement was received within 60 days of the SSOC, it is a proper election into the modernized review system for the issue of entitlement to an increased rating for PTSD. 38 C.F.R. § 19.2(d)(2). That ostensibly left the issues of entitlement to a restoration of the Veteran’s former rating for PTSD and entitlement to a TDIU under the legacy appeals system. As previously analyzed, the Board has now restored the Veteran’s previous rating for his PTSD. The TDIU issue, however, is trickier. The Court of Appeals for Veterans Claims has been clear that entitlement to a TDIU “is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim . . . or as part of a claim for increased compensation.” Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the Veteran contends that his inability to secure or follow a substantially gainful occupation is due in part to his PTSD, any action to determine the proper rating for that issue will necessarily impact the Veteran’s TDIU claim. As noted, however, the issue of entitlement to an increased rating for PTSD is now proceeding under the AMA. As reflected by the Veteran’s numerous attempts to opt into the AMA in the period between the Board’s remand and his eventual August 2020 notice of disagreement, it is clear that he wants to proceed under this system. Though the Veteran did not explicitly list entitlement to a TDIU on his notice of disagreement, the fact that it is a derivative claim of his increased rating issue ultimately means that it should properly be considered alongside that issue rather than separately under the legacy appeals system. Accordingly, the Board will dismiss his TDIU claim under the legacy system in order to allow it to be adjudicated with his claim for an increased rating for PTSD under the AMA. On this point, the Board wishes to be very clear: the Veteran’s claim for a TDIU will be adjudicated, but for the reasons noted, that adjudication is best done in conjunction with his PTSD claim under the modernized review system. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.