Citation Nr: 21009595 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 17-15 125 DATE: February 22, 2021 ORDER Restoration of the 100 percent rating assigned for traumatic brain injury (TBI) with post-concussion syndrome, effective April 1, 2014, is granted. FINDING OF FACT There has been no sustained improvement shown with regard to the Veteran’s service-connected TBI with post-concussion syndrome since an initial 100 percent rating was assigned for the disability. CONCLUSION OF LAW The criteria for restoration of the 100 percent rating assigned for TBI with post-concussion syndrome, effective April 1, 2014, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that essentially reduced the rating assigned for TBI with post-concussion syndrome from 100 percent disabling to noncompensable, effective April 1, 2014, as the decision informed the Veteran that her service-connected TBI would now be rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, in conjunction with her service-connected post-traumatic stress disorder (PTSD) with the previously assigned 70 percent rating for PTSD being continued for both disabilities thereby reducing her overall combined rating to 90 percent and discontinuing her award of special monthly compensation under 38 U.S.C. § 1114(s). The Veteran appeared at hearing before the undersigned in December 2020. A transcript of the hearing is of record. Analysis The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in rating of a service-connected disability when warranted by the evidence, but only after VA has met certain procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e). Substantively, the criteria governing rating reductions for service-connected disabilities is found in 38 C.F.R. § 3.344. The provisions of 38 C.F.R. § 3.344(a) and (b) apply to ratings that have been continued for five years or more. In such cases, the regulation prescribes more stringent criteria that must be met before a rating may be reduced. Where a disability rating has continued at the same level for less than five years, as in this case, the analysis is conducted under 38 C.F.R. § 3.344(c), which provides that reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. VA is also required to comply with several general regulations applicable to all cases involving the evaluation of a disability, 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, 4.3, 4.6, 4.7, 4.10, 4.13, 4.14; see also 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 service-connected 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 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. Faust v. West, 13 Vet. App. 342, 349 (2000). Here, a September 2009 rating decision granted service connection for TBI with post-concussion syndrome with an initial 100 percent rating, effective February 24, 2009, based on cognitive impairment (memory, attention, concentration, executive functions) assessed on objective testing by a May 2009 VA examiner and attributed solely to TBI. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. The Board notes this rating was in addition to a 70 percent rating that was previously assigned under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD. The record reflects the Veteran filed a claim in September 2013 for special monthly compensation based on the need of regular aid and attendance, after which she was scheduled for several VA examinations to assess the functional impairment resulting from her service-connected disabilities. A September 2013 TBI examiner again noted evidence of cognitive impairment associated with TBI, but it does not appear he conducted objective testing consistent with that of the Veteran’s initial examiner in May 2009. An October 2013 psychiatric examiner also differentiated symptoms between TBI and PTSD. Specifically, the October 2013 psychiatric examiner attributed symptoms of memory problems, seizures, and headaches to TBI with anxiety, intrusive thoughts, flashbacks, nightmares, avoidance, and irritability being attributed to PTSD. The October 2013 psychiatric examiner assessed the Veteran’s level of occupational and social impairment with regards to all mental diagnoses as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, but reported it is not possible to differentiate what portion of the Veteran’s occupational and social impairment assessed is caused solely by TBI rather explaining PTSD and TBI “both are causing serious functional limitations in her life.” Nevertheless, there is nothing in the October 2013 VA examiner’s report that suggests an actual change in the Veteran’s conditions or symptoms when compared with her previous examinations. The Agency of Original Jurisdiction (AOJ) cited the October 2013 psychiatric examiner’s assessment in its January 2014 reduction decision, noting “that it is impossible to differentiate what portion of the occupational and social impairment is caused by service-connected [PTSD] and [TBI]”; however, the Board notes the October 2013 psychiatric examiner’s opinion does not indicate the Veteran’s PTSD does not manifest through impairment that warrants a 70 percent rating standing alone but rather that it is not possible to differentiate what portion of the assessed occupational and social impairment, if any, is caused solely by TBI. In contrast, the October 2013 psychiatric examiner explicitly noted PTSD and TBI “both are causing serious functional limitations in her life.” The October 2013 VA examiner’s report clearly indicates the Veteran is experiencing separate symptoms from the disabilities, to include cognitive impairment, which was the basis for the separate rating assigned for TBI under Diagnostic Code 8045. (Continued on the next page)   Ultimately, the Board finds the October 2013 psychiatric examiner’s notation on the disability benefits questionnaire (DBQ) that it is not possible to differentiate what portion of the assessed impairment under the General Rating Formula for Mental Disorders is caused by TBI is insufficient to provide the assurance contemplated by VA regulation that there has been an actual change in condition that warrants a reduction in rating under Diagnostic Code 8045. See 38 C.F.R. § 4.14 (explaining the repercussion upon a current rating must be kept in mind when a change of a previously assigned diagnosis or etiology is suggested, especially in the context of mental disorders, with aim being reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted and the rating agency assuring itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms when a change in evaluation is to be made). In fact, the narrative sections of the September 2013 TBI examination report, the October 2013 psychiatric examination report, an April 2016 psychiatric examination report, a January 2017 TBI examination report, and a January 2017 psychiatric examination report reveal there has been no substantial change in the Veteran’s symptoms since her initial ratings were assigned for PTSD and TBI. Rather, these examination reports provide varied and, at times, conflicting opinions regarding the etiology of the Veteran’s symptoms and the ability to differentiate symptoms and functional impairment between the disabilities. When viewed from a Veteran-centric point of view, the Board finds the October 2013 psychiatric examiner’s DBQ supports a finding that there should be no reduction in rating under Diagnostic Code 9411 on account of TBI because it is not clear what portion of that impairment, if any, is attributable to the separate symptoms of TBI rather than the separate symptoms from PTSD. The Board finds it inappropriate to reduce the rating assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8045, based on a DBQ that was designed to elicit information for the rating criteria outlined in the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130, especially when there has been no definitive change in symptoms. As a result, the Board finds the evidence fails to establish there has been a sustained improvement shown with regard to the Veteran’s service-connected TBI with post-concussion syndrome since an initial 100 percent rating was assigned for the disability; therefore, restoration of the 100 percent rating, effective April 2, 2014, is warranted. The Board notes the effect of this decision should not be construed as anything less than a full grant of the Veteran’s appeal with restoration of the 100 percent rating for TBI under Diagnostic Code 8045 with the 70 percent rating assigned for PTSD under Diagnostic Code 9411 remaining undisturbed as the evidence of record establishes that the Veteran at least as likely as not has separate symptoms emanating from these disabilities, which can be compensated separately without violating the prohibition of against pyramiding of ratings. This grant should also encompass ancillary benefits, to include, but not limited to, special monthly compensation under 38 U.S.C. § 1114(s), that were warranted prior to the January 2014 rating decision that led to the present appeal. In sum, the Board finds the Veteran’s compensation award should be fully restored to the award that was in effect prior to the issuance of the January 2014 rating decision and to the fullest extent her appeal is granted. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.