Citation Nr: 21008580 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-10 510A DATE: February 17, 2021 ORDER The reduction of the rating of posttraumatic stress disorder with opiate use disorder in early remission and alcohol use disorder in remission (PTSD) from 70 percent to 50 percent from January 1, 2014, to January 31, 2018, was proper. FINDING OF FACT Improvement in the Veteran’s service-connected PTSD from January 1, 2014, to January 31, 2018, was shown by the totality of the evidence of record, which resulted in no worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for reduction of the rating for PTSD from a 70 percent to 50 percent disability rating, from January 1, 2014, to January 31, 2018, was proper. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.105 (e), 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2002 to December 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at videoconference hearings before the undersigned Veterans Law Judge in May 2017 and December 2020. Transcripts of the hearings are of record. The Board last remanded this matter in September 2018. The Board finds there has been substantial compliance with its September 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) The reduction of the rating of posttraumatic stress disorder with opiate use disorder in early remission and alcohol use disorder in remission (PTSD) from 70 percent to 50 percent from January 1, 2014, to January 31, 2018 A December 2009 rating decision granted service connection for PTSD. An initial 70 percent rating was assigned. The Veteran did not file a notice of disagreement with the initial rating. The Veteran failed to show for a scheduled VA examination in June 2012. A July 2012 rating decision proposed to reduce the rating for PTSD from 70 percent to 50 percent. An October 2013 rating decision reduced the rating effective January 1, 2014. There are certain procedures that must be followed before the reduction in the evaluation of a service-connected disability can be effectuated. Where the reduction in evaluation of a service-connected disability is considered warranted 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 will be notified of the contemplated action and furnished detailed reasons therefore, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e). The evidence demonstrates that the procedural requirements for a rating reduction were followed. In the July 2012 rating decision, the RO proposed to reduce the rating for PTSD from 70 percent to 50 percent. The Veteran was notified of the proposed reduction by a July 2012 letter and notified that he had 60 days to respond. The rating decision that decreased the evaluation to 70 percent was issued in October 2013, and the Veteran was notified of this action in a letter dated October 2013. The effective date of the reduction was not until January 1, 2014, beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. The Board notes that the initial proposal letter was dated July 2012. Therefore, the procedural requirements for a reduction were met. See 38 C.F.R. § 3.105 (e). In determining the propriety of a previous rating, the entire record as to medical history should be considered to ascertain whether the most recent examination is indeed a full and complete depiction of the level of disability. 38 C.F.R. § 3.344 (a). Likewise, in such cases provided doubt remains, after according due consideration to all the evidence developed by the several items discussed in the preceding paragraph (section 3.344(a)), the rating agency will continue the rating in effect under specified procedures. 38 C.F.R. § 3.344 (b). The 70 percent rating had been effective from April 2009, and the reduction was proposed in July 2012. Therefore, as the rating was in effect for less than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) are not applicable. The determination in a reduction in rating case must include the proper application as to the standard of proof. To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required. See Brown v. Brown, 5 Vet. App. 413, 420 (1993). Under the General Rating Formula for Mental Disorders, Diagnostic Code 9411, a 50 percent rating for PTSD contemplates 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. The initial 70 percent rating was based on results of an August 2009 VA examination. That examiner noted that the Veteran’s PTSD resulted in total occupational and social impairment. The Veteran was single and had a poor relationship with his family. He lost his fiancé and son secondary to relationship issues. He denied any activities or leisure pursuits and said he stayed isolated. Upon examination, the Veteran was clean with unremarkable psychomotor activity. Speech was hesitant and attitude was guarded and anxious. Affect was blunted. Attention was intact and the Veteran was oriented to all spheres. Thought process and thought content were unremarkable. The Veteran had persecutory delusions, which were persistent. The Veteran was noted to understand the outcome of behavior with average intelligence. The Veteran understood he had a problem. There was sleep impairment. The Veteran had visual hallucinations, which were not persistent. There was no inappropriate behavior or obsessive/ritualistic behavior. The Veteran reported panic attacks that started when his medication wore off; he would tense up, sweat, be unable to move, and hyperventilate. There were no homicidal or suicidal thoughts. The Veteran had poor impulse control, and thus, had difficulties with relationships. He was able to maintain minimum personal hygiene and there were no problems with activities of daily living. Memory was normal. Additional PTSD symptoms included the following: re-experiencing; avoidance; and increased arousal. The Veteran said he only felt fully “symptom free” when his medicine was working. A GAF score of 55 was assigned. The examiner concluded that the Veteran was alone, unemployed, and unable to maintain a relationship. His family no longer associated with him due to his behavior, and he was dealing with alcohol problems; he was isolative. The Veteran was unable to leave the house often times. He was angry and often reported flashbacks. His difficulties with avoidance prevented him from maintaining employment. Alcohol use appeared to be associated with PTSD and an effort to self-medicate. In an April 2012 VA treatment record, the Veteran reported daily panic attacks superimposed on a constant level of baseline anxiety. The Veteran was in welding school. He said his anxiety led to frustration, which led to anger and violent outbursts. He said that his girlfriend was scared of him and that he avoided being around people. He tried multiple medications, which either had intolerable adverse effects or did not alleviate his symptoms sufficiently. The Veteran said he did not feel that therapy helped him and was not willing to participate; however, he said he would consider it in the future. The Veteran was sleeping well with medication. His only complaint was about his anger. There was no depression or suicidal ideation. In an August 2012 statement, the Veteran said he had been homeless and that only recently had he been allowed to move back in with his mother. He said he had cognitive disability that made it extremely difficult to organize his thoughts, understand complicated instructions, and stay organized. In a September 2013 VA treatment record, it was noted that the Veteran generally did not appear to be experiencing excessive emotional distress. There was no overt evidence of severe psychopathology observed. The Veteran denied suicidal and homicidal ideation. In a November 2014 VA treatment record, the Veteran reported increased anxiety. The Veteran worked washing dishes at a restaurant and rode his bike to work since he lost his driver’s license due to non-payment of child support. The Veteran moved out from living with his girlfriend and was now living alone. He said he tried to keep busy to avoid feeling lonely. The Veteran would go for bike rides and to the gym to keep active. He usually slept about 6 hours per night, but sometimes would have anxiety at night and would barely sleep. He occasionally had nightmares, but more frequently would have intrusive thoughts about his time in Iraq. He tried breathing techniques, but they only seemed to calm him down for a few minutes. The Veteran had not used opiates for 19 months. He felt that his Xanax was not working as well as it used to. Upon examination, the Veteran was alert, dressed, and appropriate with no acute distress. Motor activity was calm and the Veteran was cooperative. Speech was normal and mood was depressed, irritable, and anxious. Affect was congruent and attention was distractible. Concentration was brief and memory was normal. Thought process was normal, goal oriented, and logical. There were no delusional thoughts. Judgment and insight were fair. The Veteran was oriented to all spheres. There was no suicidal ideation. In a May 2015 VA treatment record, the Veteran said he was sleeping better. He said he had moved into a new place with his wife 10 days earlier. Most nights he slept 5 to 8 hours. He was working part time as a handyman/doing lawn work to help with bills. He said he slept better if he worked or was at the gym. Medication helped keep him calmer and more focused. Upon examination, the Veteran was alert, dressed appropriate, and in no acute distress. Motor activity was restless, and he was cooperative. Speech was normal and mood was anxious. Affect was mood congruent, and concentration and memory were normal. Thought process was normal linear, goal oriented, and logical. There was no auditor or visual hallucinations. There were no delusional thoughts. Judgment and insight were fair. The Veteran was oriented to all spheres. The Veteran denied suicidal or homicidal ideation. In an August 2015 VA treatment record, the Veteran became anxious and told the nurse that he had panic attacks and social anxiety. He was escorted to PCMH. Upon examination, the Veteran was alert and oriented to all spheres. The Veteran was casually and appropriately dressed. He was cooperative and pleasant. Speech was normal and mood was anxious/defensive. Affect was congruent with mood. Thought process was linear, logical, and goal directed. Thought content was reality based with no delusional content noted. There were no hallucinations. There was no suicidal or homicidal ideation. Memory was intact and attention/concentration was good. Sleep was interrupted with nightmares. Insight and judgment were fair, and there were no reports of anger or aggression. The Veteran said he was working full time and liked his job; however, he had social anxiety and found it difficult to communicate with his coworkers. He said he had a happy, supportive relationship with his fiancé of 1 year. He had a 10 year old son that he was close to. The Veteran was future focused and was requesting continued follow up mental health care. There were no psychotropic medications prescribed, but had taken medication for anxiety and depression in the past. In an April 2017 VA treatment record, the Veteran presented with a depressed mood with occasionally tearful affect secondary to exhibiting continued difficulties in managing his PTSD symptoms as well as several psychosocial stressors. The Veteran was not considered to be a high risk for self-harm; the Veteran denied suicidal or homicidal ideation. The Veteran aid that his problems with depression, anxiety and avoidance were his most significant reactions at the time. In a May 2017 VA treatment record, the Veteran was calm and cooperative with appropriate grooming and hygiene. He was alert and oriented to all spheres and eye contact was fair. Motor function was grossly intact and mood/affect was anxious, “angry,” congruent, and tearful. Speech was coherent and normal. Thought processes were goal directed and there were no delusions elicited. The Veteran denied perceptual disturbances. Insight and judgment were fair and there was no suicidal or homicidal ideation. The treating physician had concern for the Veteran’s increased report of depression. At the May 2017 Board hearing, the Veteran testified that he was homeless from 2-2012 to 2014, and in 2015 he got help from the domiciliary. When he was homeless, he could not get his mail and did not know when he had appointments. He also said he was incarcerated for periods of time. The Veteran said he participated in an inpatient treatment program where he went through the domiciliary homeless program, and they helped him get a place to live. The Veteran said that he was being treated through the substance abuse program and PTSD. The Veteran was a full-time student. The Veteran said that because of his PTSD he did not have any friends and lived alone; he could not get in a relationship. He said that every day he did not want to live anymore. He experienced anxiety and was unable to have a conversation. He said everything had gotten worse. He was unable to drive a car and could not afford food and had to steal food from Walmart this month; he was scared about going back to jail. He said there was no improvement in his symptoms from April 2009 to January 2014. Because of the Veteran’s testimony that he was incarcerated and/or homeless and was not receiving mail, including VA examination notifications, a retroactive VA opinion was requested to determine the severity of the Veteran’s PTSD from January 1, 2014 to January 31, 2018. In an April 2019 VA opinion, the examiner noted that the Veteran had psychiatric VA examinations in February 2018 and December 2018. In regards to the Veterans impairment from 2014 to February 2018, the Veteran’s history revealed jail time for violation of parole, periods of employment washing dishes, working in a mushroom factor with difficulty working with others due to angst, inability to obtain employment due to criminal history, drug use with subsequent detox, engagement in the TWE IT program at Bay Pines from 2015 to 2016, expressed interest in working in a gym, legal issues for possession of marijuana, engagement with vocational rehab indicating a desire to work, 2017 enrollment in school and part time work, treatment in SARRTP, and PTSD treatment. The examiner concluded that based on the review of the records, the last psychiatric VA examination, and information in the claims file, the degree of impairment due to PTSD as well as substance use disorder remained occupational and social impairment with reduced reliability and productivity. At the December 2020 Board hearing, the Veteran testified about his PTSD symptoms from 2014 to 2018. He said that when he had panic attacks he would get an overwhelming sense of fear and lock up. He said he could barely breathe and it made him terrified. The panic attacks were frequent and sometimes he would lock himself in his room because he felt too unsettled to go outside. The Veteran said he would get violent and take things out of context or not understand someone. The Veteran said that he had suicidal ideation from 2014 to 2018. He said he did not understand his purpose in life. He said he had thought about killing himself. He described sleeping issues as well and said that he was hypervigilant. He also said that he neglected brushing teeth and shaving. He also would go days without bathing or showering and would wear the same clothes. After a thorough review of the evidence, the Board finds that the record demonstrates that the Veteran’s service-connected PTSD had improved so as to warrant a rating reduction from 70 percent to 50 percent under Diagnostic Code 9411. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken accordingly as appropriate. 38 C.F.R. § 3.655(a). Under those guidelines, in the case of a claimant who fails to report for a reexamination, "VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued." Id. at § 3.655(c)(1). This pretermination notice "shall include the prospective date of discontinuance, the reason therefor, and a statement of the claimant's procedural and appellate rights." Id. Following the issuance of this notice, "the claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination" or to present evidence regarding the disability for which the reexamination was scheduled. Id. If the claimant fails to respond to the pretermination notice within 60 days (or if any submitted evidence does not establish continued entitlement to the benefit), then "payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination or the date of last payment, whichever is later." 38 C.F.R. § 3.655(c)(2). Conversely, if, in the 60 days following the issuance of the pretermination notice, "notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred." 38 C.F.R. § 3.655(c)(3). In such cases, the "reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment." Id. The Board acknowledges that the Veteran was homeless and/or incarcerated and due to that missed two scheduled VA examinations in 2012 and 2015. This was the basis for the reduction, along with a review of the record. However, the Board finds that the record was complete and thorough. In this regard, the Veteran’s claims file was reviewed and complete medical history was obtained from the Veteran. The Board notes that the Veteran expressed suicidal ideation at the May 2017 and December 2020 Board hearing. However, the records consistently show no findings of suicidal ideation; in fact, the Veteran consistently denied suicidal ideation when prompted by treating VA physicians. Additionally, at the December 2020 Board hearing, the Veteran stated that he neglected his personal hygiene during the period on appeal. However, again, the record consistently showed that the Veteran was always dressed appropriately and groomed. The overall record shows that the Veteran worked at times, was a full time student at one point, had a fiancé at one point, then a wife, good relationship with his son, and was future focused. He also went off medication for periods of time. The Veteran’s speech was found to be normal, there were no hallucinations or delusions, or near continuous panic attacks or depression affecting the ability to function independently, appropriately and effectively. Although there are times of increased anxiety and panic attacks, and a history of violent outbursts, the Veteran’s PTSD symptoms overall did not show to be as severe as warranting a 70 percent disability rating. In fact, to give the Veteran the benefit of the doubt in missing his scheduled VA examinations, a retroactive VA opinion was obtained to determine the severity of his PTSD symptoms from 2014 to 2018. The April 2019 VA examiner determined, after reviewing all of the evidence, that the Veteran’s PTSD was manifested by occupational and social impairment with reduced reliability and productivity. This suggests a 50 percent disability rating. The VA opinion clearly addressed the severity of the Veteran’s PTSD for rating purposes and showed that the Veteran only met the criteria for a 50 percent rating from January 1, 2014 to January 31, 2018. The fact that improvement was shown in the record from January 1, 2014 to January 31, 2018, as well as confirmed in the April 2019 VA opinion shows that there was sustained improvement under the ordinary conditions of life. In conclusion, the Board finds that the propriety of the reduction of the evaluation of PTSD from 70 percent to 50 percent, effective January 1, 2014, to January 31, 2018, was proper. In reaching this decision, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.