Citation Nr: 21014640 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-53 944 DATE: March 15, 2021 ORDER The rating reduction for posttraumatic stress disorder (PTSD) from 50 percent to 30 percent effective May 1, 2016 was improper, and the 50 percent rating is restored. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period from May 1, 2016, PTSD has approximated at least occupational and social impairment with reduced reliability and productivity. There was no sustained improvement. CONCLUSION OF LAW The criteria for a rating of 50 percent rating for PTSD from May 1, 2016 have been met; restoration of the rating is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty as a U.S. Army from July 1966 to July 1968 including service in the Republic of Vietnam. He was awarded the Purple Heart Medal. In December 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge in Waco, Texas. A significant amount of evidence has been associated with the claims file since the Veteran’s most recent supplemental statement of the case in October 2017. During his hearing, the Veteran waived review of evidence by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board may proceed with adjudication. Reductions Initially, because the rating reduction at issue reduced the Veteran’s combined disability rating, resulting in a reduction in the amount of compensation payable to him, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, the RO complied with those requirements in its October 2015 notice of the proposal to reduce the rating, and in the February 2016 rating decision reducing the rating. The Board finds the RO satisfied the requirements set forth in 38 C.F.R. § 3.105(e). Turning to whether the reduction was proper, the Board notes that at the time of the reduction, effective May 1, 2016, the 50 percent for PTSD had been in effect for a period of less than five years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply and reexamination disclosing improvement would warrant a rating reduction. 38 C.F.R. § 3.344(c). However, in Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements which are applicable to all rating reductions. Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that “[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.” Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. §§ 4.2, 4.10 (2017). The burden of proof is on the Department of Veterans Affairs (VA) to establish that a reduction is warranted by a preponderance of the evidence. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). In general, the RO’s reduction of a rating must have been supported by the evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). 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). The Veteran filed a claim for an increased rating for his PTSD in July 2015. Under the General Formula for Rating Mental Disorders, a 50 percent disability rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. Id. A 70 percent evaluation is warranted where there is 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; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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 symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must engage in a holistic analysis and consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b); see also Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). 1. The rating reduction for posttraumatic stress disorder (PTSD) from 50 percent to 30 percent effective May 1, 2016 Turning to the evidence, March 2015 VA mental health treatment records reveal that the Veteran endorsed a longstanding history of PTSD symptoms that impacted his relationships and overall quality of life. During the appointment, the Veteran reported feeling lost and showcased symptoms of depression. He reported seeking therapy in order to work through his trust issues and interpersonal difficulties. April 2015 VA treatment records reflect that the Veteran had “a longstanding history of PTSD symptoms and report[ed] symptoms of sleep difficulties, hypervigilance and exaggerated startle response.” The Veteran’s VA treatment records reflect that he requested termination of individual mental health therapy in May 2015 because his mood had improved over the past several weeks and he had an increased support system. The Veteran reported an increased level of social activity, including participating in his church group, increasing the interactions with his grandchildren, and becoming more involved in the veterans’ community. Id. The Veteran stated that he had gained insight on his pattern of negative thinking and developed a better perspective. He reported that he had become a leader at a local veteran’s chapter in the area. The Veteran reported a decrease in nightmares, but did reported continued hypervigilance. The treating psychologist reported that the Veteran was able to resolve his interpersonal difficulties and that he had good insight into his emotional functioning and applied skills, but continued to endorse symptoms of PTSD and would benefit from evidence-based psychotherapy. The Veteran attended a VA examination in July 2015. He reported working as a truck driver for over 30 years with no apparent work difficulties. He stated that he retired due to headaches and knee problems. He denied taking any medications for PTSD. The Veteran reported some anxiety dealing with the relationship with his son, but did not report any mental health symptoms due to his PTSD. He told the examiner that he was using printed instructions to guide him in building a deck at his house. He also reported helping his son build a deck. He enjoyed watching television, gardening, and painting cabinets. Following an examination and review of the claims file, the examiner determined that while the Veteran had been diagnosed with PTSD, his symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner reported that the Veteran’s lay statements were not consistent and did not match what was observed by the examiner. September 2015 VA treatment reveals that the Veteran spent part of the day looking after and transporting his teenage grandchildren. He reported depression, social isolation, irritability, and a lack of enjoyment. The treating physician assistant discussed prescribing an antidepressant. November 2015 VA treatment records reflect that the Veteran denied taking any medication for his mental health. Following the appointment, the treating physician assistant noted that it was in his opinion that the Veteran’s PTSD symptomology continued to have significant negative impact on his ability to cope with everyday life events. In December 2015 correspondence, the Veteran objected to the findings of the July 2015 VA examination. He stated that his mental health symptoms had remained consistent since his diagnosis. December 2016 VA mental health treatment records reflect that the Veteran reported some delusional thoughts. He was fidgety and made little eye contact. February 2017 VA treatment records reveal that the Veteran reported intrusive thoughts. April 2017 VA treatment records reflect that the Veteran was showing some obsessional and delusional beliefs. The Veteran attended a VA examination in December 2019. He reported frequent depression, anxiety, sleep disruption, excessive worry, irritability, weight gain, lack of trust, loss of motivation and interest in previously enjoyed activities, hypervigilance, isolation, memory problems, nightmares, avoidance, and panic attacks monthly. He also reported suicidal thoughts without plan or intent. Following an examination and review of the claims file, the examiner concluded that the Veteran had PTSD and depressive disorder secondary to his service-connected medical conditions. The examiner determined that it was not possible to differentiate which symptoms were attributable to each diagnosis, but concluded that the Veteran’s mental health conditions caused occupational and social impairment with reduced reliability and productivity. The Veteran attended a Board hearing in December 2019. He testified that he had originally filed for an increase in his evaluation in July 2015 because he was growing dependent on his grandchildren to take care of him. He did not feel that his mental health symptoms improved. The decision to reduce the rating to 30 percent results in an evaluation that is not truly consistent with the Veteran’s disability picture when viewed in the context of the treatment record. His symptoms reflected in treatment can be reasonably inferred to describe a fairly constant state of impairment. When examining the VA treatment records, December 2019 VA examination, and the Veteran’s testimony before the undersigned, the Veteran’s mental health picture does not reflect sustained improvement. He testified in December 2019 that his mental health was not better, and was indeed worse. The Board also finds the November 2015 medical note provided by the Veteran’s VA mental health care provider to be highly probative. The physician assistant stated that the Veteran’s mental health disorder continued to significantly impact the Veteran’s ability to cope with everyday life events. This statement opposes the notion that the Veteran’s mental health showcased improvement in ability to function under ordinary conditions of life and work. The Board finds the statements made by the Veteran, both in connection with this claim and in treatment settings, to be generally credible as to his realistic impairment being at least consistent with a 50 percent rating. There has been no sustained improvement. While the Board notes the period between May 2015 and September 2015 appear to show improved mental health, this short period is not consistent with his mental healthcare picture when reviewed as a whole. The decision to assign a 30 percent evaluation disrupts the intent of 38 C.F.R. § 3.344, stabilization of a rating. Accordingly, in concert with 38 C.F.R. § 3.344, the Board restores the 50 percent evaluation effective May 1, 2016. REASONS FOR REMAND 2. Entitlement to a rating in excess of 50 percent for PTSD During December 2016 and later VA treatment, the Veteran identified relevant outstanding private treatment records when he reported that he was prescribed mental health medication from an outside provider. He also identified regular mental health counseling at a Vet Center. A remand is required to allow VA to obtain authorization and request these records. 3. Entitlement to a total rating based on individual unemployability (TDIU) Also in VA outpatient treatment encounders, the Veteran reported that he received medication or treatment from a private provider for physical disabilities relevant to his capacity for employment. Because a decision on the remanded issue of entitlement to an increased rating for PTSD and the private records could significantly impact a decision on the issue of TDIU entitlement, the issues are inextricably intertwined and a remand is required. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any private healthcare treatment and for records of mental health care at a Vet Center. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. After completing the development requested above, to include scheduling the Veteran for another mental health VA examination if deemed necessary, readjudicate the Veteran’s claim, to include entitlement to a TDIU rating. If any of the benefits sought are not granted in full, the agency of original jurisdiction should furnish the Veteran and his representative an supplemental statement of the case (SSOC) and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.