Citation Nr: 21014179 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-34 905 DATE: March 11, 2021 ORDER The reduction in the rating from 100 percent to 70 percent effective July 1, 2016 for posttraumatic stress disorder (PTSD) with alcohol and cocaine use disorders and mild traumatic brain injury (TBI) (hereinafter “PTSD”) was proper. REMANDED Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. REFERRED ISSUE The issue of entitlement to a rating in excess of 70 percent beginning July 1, 2016 was raised during the June 2020 Board hearing. Specifically, the Veteran testified that his PTSD symptoms had worsened. The matter is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. In a June 2012 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD and assigned a 100 percent rating effective September 21, 2011. 2. The 100 percent rating for the Veteran’s service-connected PTSD was in effect for less than five years when it was reduced to 70 percent effective July 1, 2016. 3. Improvement in the Veteran’s PTSD from July 1, 2016 was shown by the totality of the evidence of record, which resulted in no worse than occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for reduction of the rating for PTSD from a 100 percent to 70 percent rating from July 1, 2016, was proper. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from November 2005 to May 2006, and June 2006 to May 2007, to include service in Southwest Asia. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision (reducing the Veteran’s rating for PTSD) and a March 2018 administrative decision (granting entitlement to service connection for migraine headaches, and assigning an initial 30 percent rating, effective September 21, 2011), issued by the Department of Veterans Affairs (VA) Regional Office (RO) Nashville, Tennessee. The Veteran and his wife testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in June 2020. A transcript of the hearing has been associated with the claims file. The record was held open for 30 days following the hearing to allow for the submission of evidence; however, no additional evidence was received. Rating Reduction – PTSD The Veteran seeks restoration of his 100 percent rating for service-connected PTSD, effective July 1, 2016. Specifically, he asserts that his symptoms did not improve, and essentially renders him totally occupationally impaired. See e.g. Board hearing testimony transcript, June 11,2 2020. In this regard, he testified that, although he was employed for the past three years with one employer, he was provided many accommodations to maintain his employment; and that prior to this employer, he was unable to keep a job for more than a few months at a time. Id. Additionally, the Veteran and his wife testified that the Veteran’s PTSD symptoms included social impairment resulting in altercations with customers and friends, lack of motivation, constant frustration, being hateful, poor hygiene, carelessness, short-tempered, impatience, headaches, nightmare every night, memory loss, alcohol use, self-isolation, fatigue and being always on guard. Id. Additionally, the Veteran contends that his PTSD symptoms had not improved, and had worsened which resulted in his inability to hold a job, inability to communicate with others, issues with motivation, constant mood changes, panic attacks, headaches, depression, sleep impairment, inability to maintain a job, inability to handle stress, impaired relationship with his family, anger issues, marital discord, decreased hygiene and financial instability. See Notice of Disagreement, April 4, 2016. There are certain procedures that must be followed before the reduction in the evaluation of a service-connected disability can be effectuated. Under 38 C.F.R. § 3.105(e), where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating decision proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons. The beneficiary must be notified 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 their present level. In addition, a Veteran is entitled to a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice of the proposed rating reduction. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action. 38 C.F.R. § 3.105(i)(1). In this case, the reduction of the rating for PTSD from 100 percent to 70 percent resulted in a reduction in the Veteran’s overall amount of compensation payable at the time. Specifically, due to the reduction, the Veteran’s combined rating decreased from 100 percent to 80 percent. Therefore, the provisions of 38 C.F.R. § 3.105(e) are for application. The evidence demonstrates that the procedural requirements for a rating reduction were followed. In a January 2016 rating decision, the RO proposed to reduce the rating for PTSD from 100 percent to 70 percent. The Veteran was notified of the proposed reduction by a February 2016 letter and notified that he had 60 days to respond. The rating decision that decreased the rating to 100 percent was issued in April 2016, and the Veteran was notified of this action in a letter dated April 2016. The effective date of the reduction was not until July 1, 2016, 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 February 2016. Therefore, the procedural requirements for a reduction were met. See 38 C.F.R. § 3.105(e). The 100 percent rating had been effective from September 2011, and the reduction was proposed in February 2016. 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 question remaining as to the rating reduction issue is whether the reduction was proper, based upon the evidence of record. 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 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 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent 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. Id. The initial 100 percent rating was based on the results of an April 2012 VA examination. That examiner noted the Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran experienced symptoms of PTSD on a daily basis that were chronic in nature and moderately impaired him, intrusive thoughts nearly every day, difficulty blocking thoughts and avoidance of thoughts, avoided talking about his experiences with others, feelings of depression and guilt, anxiety, frequently triggered by stimuli that remind him of his tour of duty in Iraq, avoidance of crowded public places, avoidance of news of the war, triggered flashbacks, emotional numbing, experienced feelings of love and fondness for his fiancée and family, with some difficulty expressing emotions, excessive alcohol and drug use likely represented an extension of emotional numbing, drug use strained his relationship with family, apathetic about friendships, had a few close friends, social avoidance, does not initiate contact with friends, suspiciousness of others, difficulties trusting people, persistent irritability, lower tolerance for frustration, hypervigilant, especially in unfamiliar places, easily startled by loud or unexpected noises, heightened anxiety and panic attacks with associated shortness of breath and elevated heart rate, sleep disturbances, daytime fatigue and feelings of exhaustion, nightmares and alcohol abuse. The examiner noted the Veteran’s PTSD symptoms included recurrent nightmares accompanied by tactile hallucinations, intrusive memories, flashbacks, intense emotional distress when re-experiencing combat, physiological distress when re-experiencing combat, especially after nightmares, as evidenced by sweating, shaking, and increased heart rate, avoids conversations about combat, tries not to think about combat to no avail, avoids some media that might remind him of combat, social detachment, has little desire to socialize, does not feel able to connect with others, prefer isolation, reduced participation in once pleasurable activities and other significant activities of daily living, difficulty initiating and maintaining sleep, irritability, concentration difficulties with memory impairment, hypervigilance, mistrust of others, feels panicked in crowds, exaggerated startle, and alcohol dependence. Additional symptoms attributable to his PTSD included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, and intermittent inability to perform activities of daily living. The Veteran worked full time in a factory, and had this job for approximately two months. He reported it had been difficult to keep a job due to the combined effects of his headaches and PTSD. An April 2014 VA treatment record indicates the Veteran had irritability especially at work, thrown things, had some verbal confrontations with his boss, had work-related stress that worsened his mental health symptoms, denied physical aggression toward people, endorsed low frustration tolerance, had poor concentration, denied hopelessness, suicidal ideation, homicidal ideation, or psychosis, and stated he had some combat related nightmares on occasion. The Veteran reported that his wife was supportive, and his family was doing well. At a July 2014 VA examination, the examiner noted the Veteran’s PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported he was married, got along “awesome” with his stepson, his kids were “good”, and his marriage was “going.” He stated that his irritability and drinking was hard on his wife. He socialized with his wife’s friends and church friends, and reported some tensions with his brothers over past choices. The Veteran reported he had difficulty keeping a job, and that he was fired from his second job in two years. He stated that he did not get along with supervisors, had multiple verbal altercations, and was terminated after one year and five months. Prior to that, he was fired from a job after a physical altercation with a shift lead, he worked there for eleven months. Symptoms attributable to his PTSD included depressed mood, anxiety, suspiciousness, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. Behavioral observations showed the Veteran arrived on time, was alert and oriented to person, place, time, and situation, that his mood somewhat depressed and tearful at times, that he was cooperative, that he was pleasant and engaged and had good eye contact. The examiner further noted that the Veteran had nervous tapping his finger on his shoe, that he described a varying mood from “happy to grump to irritable to uneasy” and that neat, clean, and appropriately attired. The Veteran denied suicidal and homicidal ideation, hallucinations or delusions. The examiner noted that speech was linear and goal-directed, judgment is impaired, impulse control impaired, and fair insight. An August 2015 VA treatment record indicates the Veteran reported significant side effects with his psychiatric medication that resulted in inability to get off the bed, and feeling tired and sluggish the entire day, becoming extremely irritable, and being hard on his wife and snapping at his children, drinking only in moderation, and that his drinking did not affect his life, dreams two or three times a week, irritability exhibited as road rage that was intermittent, and ongoing feelings of discomfort in crowded venues. The Veteran denied and did not exhibit any symptoms of mania, psychosis, suicidal ideation, homicidal ideation, or hallucinations. The reduction of the 100 percent rating to 70 percent was based on the results of a January 2016 VA examination. That examiner noted the Veteran’s PTSD manifested in 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 reported that he lived with his wife and children, had marital strain due to his psychiatric symptoms, had a great relationship with his stepson and daughter, and worked full time. He reported hobbies that included farming animals, shooting at the range, and hunting, and had killed several deer that year. He reported he lived close to his in-laws and parents, and had regular contact with them, he described their relationships as cordial and enjoyable. The Veteran described feeling on edge and hypervigilant in public and avoided socialization in public for pleasure and found such forays draining. However, the Veteran reported he attended church regularly, co-led a small group with his wife, and was in the process of joining a veterans’ motorcycle club. The January 2016 VA examiner noted that since his prior VA examination, the Veteran reported he completed a 12 month welding school in seven months due to his high performance, and worked in welding before he was offered a better paying job in construction. He got into a fight with his foreman and lost the job, then found work as a traveling welder. However, he left this job because it required him to be away from his family four to five nights a week, and preferred more contact with his family. He indicated he had one current physical altercation at his current job, but that he was not the aggressor. He denied subsequent temper problems and problems getting along with coworkers, but endorsed having missed several days of work due to his migraines and mental health symptoms. He stated that his job had been very accommodating. The January 2016 VA examiner noted that the Veteran’s symptoms attributable to his PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, 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 worklike setting, and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations showed the Veteran was cooperative, appropriate, well groomed, dressed seasonally appropriate in clean clothing, independent and normal ambulation, good eye contact, full orientation, full alertness, normal speech, unremarkable psychomotor behavior and thought content, coherent and relevant responses and normal thought processes, no problems observed with attention, concentration, and memory. Of record is a May 2020 private treatment letter by his therapist, J.R. In her letter, J.R. noted the Veteran’s PTSD symptoms included reexperiencing the events, creating prolonged psychological distress and nightmares, alterations in arousal, as evidenced by experiencing irritability with others, aggressive, reckless, and self-destructive behaviors, sleep disturbances, hypervigilance in public settings, avoidance, related to distressing memories, thoughts, and conversations regarding traumatic events, untrusting of others, negative alterations in cognition and mood, as evidenced by experiencing persistent negative beliefs, feelings of alienation, detachment or estrangement from others, and trauma-related emotions. The Veteran reported experienced the symptoms on a daily basis, and the disturbances caused clinically significant distress and impairment in social occupational areas of functioning. As noted above, the Veteran and his wife testified at a June 2020 Board hearing. With regard to the Veteran’s PTSD, the Veteran testified that he had difficulty maintaining regular employment until three years prior, and had worked at his current employer for three years. He testified that he was terminated from prior employment due to missing work, difficulty with interpersonal relationships, and headaches. The Veteran’s testified that he had five jobs in one calendar year, and that problems included getting into altercations with a customer. She noted the Veteran no longer spoke to her best friend because her husband was the Veterans’ boss. The Veteran stated that his current job was the longest he had ever held one job, and felt it was due to the accommodations provided by his Marine veteran boss. He testified that he had impatience and irritability that caused issues with his coworkers. He also testified that he was able to convert over-time into comp time that he could use for leave to accommodate his headaches and mental health symptoms. During the June 2020 hearing, the Veteran’s wife testified that symptoms included irregular employment and income, depressed feelings, lack of motivation, frustration, hateful, poor hygiene, to include not bathing for a few days, carelessness, short-tempered, impatience, headaches, nightmares, to include waking up at night, memory loss, alcohol use, wanting to self-isolate, fatigue, inability to focus, and being on guard. With regard to his employment, the Veteran testified he worked in road maintenance, and primarily worked with a crew. However, the Veteran testified that his boss generally tried to find him jobs that he could do alone, and spent most of the day alone in a dump truck. 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 100 percent to 70 percent under Diagnostic Code 9411. The Board finds that the clinical evidence supports that there was sustained improvement in the Veteran’s service-connected PTSD. In this regard, a July 2014 VA examination report indicates the Veteran had an “awesome” relationship with his stepson and kids, socialized with his wife’s friends and church friends, and had been fired from his jobs due to aggression. The April 2012 and July 2014 examiners opined his PTSD manifested in occupational and social impairment with deficiencies in most areas. Both examiners noted the Veteran had difficulty maintaining regular employment and significant and severe PTSD symptoms. Then, at his January 2016 VA examination, the examiner noted the Veterans PTSD manifested in 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. In this regard, the Veteran worked full time, had a great relationship with his children, had several hobbies that he enjoyed, regularly interacted and enjoyed such interactions with his in-laws and parents, attended church regularly, co-led a church group with his wife, and was in the process of joining a veteran’s motorcycle club. Additionally, the Veteran was able to complete a 12 months welding program in just seven months due to his high performance, and noted this was the first time he had ever done so well. Moreover, although the Veteran had changed jobs several times, the Veteran reported he had quit his job to spend more time with his family. He also denied subsequent temper problems and problems getting along with coworkers, and that his job accommodated his absences. Further, the Board notes that the Veteran has maintained regular full-time employment for three years with the same employer, and that his job involves regular teamwork and interaction with coworkers. Although the Veteran has been provided some accommodation for absences and individual work, the Veteran testified at his Board hearing that his boss was helpful and understanding. Having reviewed the record evidence, the Board finds that the symptomatology attributable to the Veteran’s service-connected PTSD improved on January 2016 VA examination, as medical professionals noted that the Veteran’s disability resulted in occupational and social impairment 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. Notably, the Veteran had previously been assessed as having PTSD manifested in occupational and social impairment with deficiencies in most areas, and was shown to routinely be fired from jobs due to his aggression and interpersonal difficulties. The Veteran reported has continued difficulty maintaining employment, but himself has asserted that he has maintained his current employment for three years with accommodations from his boss. Moreover, the record reflects that the Veteran’s symptoms have not been consistent with total occupational and social impairment such that a 100 percent rating is warranted at any point beginning July 1, 2016. In that regard, the Veteran has not displayed gross impairment in thought processes or communication, nor has the record shown that he is a persistent danger of hurting himself or others or grossly inappropriate behavior. The Veteran has consistently denied suicidal ideation, plan, or intent, and alleged he had some homicidal ideations. Moreover, there is no evidence that the Veteran has experienced hallucinations or delusions, or obsessive rituals. Further, the Veteran has not displayed disorientation to time or place, or memory loss for names of close relatives, his prior occupations, or his own name. Additionally, there is no evidence or allegation that he was unable to maintain minimal personal hygiene. The Board notes the testimony and contentions of the Veteran and his wife that he fails to bathe for days on occasion, and that his hygiene falls below the standard that his wife would like. However, mental status examinations during the appeal period consistently found the Veteran’s grooming and hygiene to be appropriate, adequate or good. There is no evidence or allegation that the Veteran’s psychiatric symptoms manifested in interference or difficulties resulted in the inability to perform activities of daily life, to include maintenance of minimal hygiene. The Board notes the May 2020 private letter submitted by J.R. In her letter, the Veteran was shown to have significant PTSD symptoms. However, sustained improvement of his symptoms are also demonstrated here. Notably, J.R. indicated the Veteran had daily PTSD symptoms that caused “clinically significant distress and impairment in social occupational areas of functioning,” and J.R. did not indicate that his symptoms remained so severe as to cause total occupational and social impairment. Moreover, while the Veteran reported having difficulty maintaining employment the evidence shows that the Veteran has improved such that he has maintained regular employment with one employer for the past three years. Prior to his current employment, the Veteran also reported improvement of PTSD symptoms such that he excelled in his welding program. The Board also finds that the VA outpatient treatment records support a finding that improvement in the Veteran’s service-connected PTSD was sustained. Moreover, this is not a disability picture indicating total occupational and social impairment. In view of the fact the Veteran’s psychiatric disability was manifested by occupational and social impairment 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 Board finds that the reduction of the Veteran’s service-connected PTSD from 100 percent to 70 percent effective July 1, 2016 was proper as sustained improvement under ordinary conditions of life and work was demonstrated. Therefore, the benefit sought on appeal with respect to this reduction must be denied. The fact that improvement was shown in the record from July 1, 2016, as well as confirmed in the January 2016 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 rating of PTSD from 100 percent to 70 percent, effective July 1, 2016 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. REASONS FOR REMAND Increased Initial Rating – Migraine Headaches The Veteran was most recently afforded an examination his migraine headaches in January 2016. At his June 2020 Board hearing, the Veteran and his wife testified that the Veteran’s migraine headaches had worsened since his VA examination. Specifically, the Veteran and his wife testified that his migraine headaches cause him, and his wife, to miss work, that he had migraine headaches three to five times per month that resulting in visual disturbance, vomiting, inability to get out of bed, light and noise sensitivity. The Veteran also testified that his migraine headaches cause him to “wipe out” and cannot function. As the above evidence indicates a possible worsening of that the Veteran’s migraine headaches since his last VA examination, an additional examination should be afforded to gauge the current level of severity of his disability. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected migraine headaches. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. (Continued on the next page)   The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected migraine headaches. A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.