Citation Nr: 21021420 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-43 516 DATE: April 12, 2021 ORDER Restoration of a 100 percent rating for a traumatic brain injury (TBI) with posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran had active duty from to September 2001 to September 2005 and from June 2008 to June 2014. 2. At the time of the reduction of the rating for TBI with PTSD, the Regional Office (RO) scheduled an examination to assess any improvement of TBI but failed to address whether PTSD had either improved or worsened. CONCLUSION OF LAW The criteria for restoration of a 100 percent rating of TBI with PTSD have been met. 38 U.S.C. § 5112 (2012); 38 C.F.R. §§ 3.105, 3.343-3.344 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contests the reduction of his rating from 100 to 50 for TBI with PTSD effective March 1, 2015. He claims that the reduction was not warranted as only his TBI, and not his PTSD symptoms, were examined prior to the reduction. Considering the propriety of the reduction, a veteran’s disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. Procedurally, where a reduction in 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 proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify a veteran that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. A veteran is also to be informed that he or she may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60-day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e). The Board must first address whether the reduction was procedurally adequate. As noted, the RO was required to give the Veteran 60 days to submit additional evidence and to request a predetermination hearing. Here, the RO prepared a rating decision proposing the reduction on September 30, 2014, setting forth the rationale of the proposed reduction, and sent him an October 2014 notification letter explaining the timeline in which to submit additional evidence and to request a predetermination hearing. The VA took final action and issue a rating decision in January 2015 reducing the rating effective March 1, 2015. In summation, the Veteran was given notice and 30 days to elect a predetermination hearing and failed to do so. He was given 60 days to submit new evidence and did not do so. Therefore, he received proper notice as required by 38 C.F.R. § 3.105(e). However, for a disability that had not been in effect for five years, as is the case here, reexaminations showing improvement would warrant a rating reduction. Service connection for TBI with PTSD was granted in a July 21, 2014, at 100 percent with an effective date of June 30, 2014, the day after he separated from service. Two months later, in a September 2014 VA examination, TBI symptoms were evaluated again, determined by the examiner to have lessened, and the rating reduction on appeal was initiated. If he was rated solely for the symptoms of TBI, the RO would have taken all the proper procedural steps in initiating the reduction of rating. However, in the July 2014 rating decision, he was rated for the combined impact of TBI and PTSD as it was determined their symptoms overlapped and rating each separately would result in unlawful pyramiding. As such, his rating was predicated on the ratings of each. At the time service connection was awarded, TBI symptoms were adjudged to be more severe and, in a vacuum, would have warranted 100 percent while PTSD would warrant 50 percent. After the September 2014 VA examination, the RO determined that TBI symptoms had decreased, and the proposed rating decrease was thus in line with the severity of his PTSD symptoms as assessed prior to the initial July 2014 rating decision. No development was undertaken to determine if PTSD symptoms had decreased along with TBI prior to initiating the reduction of ratings. Given that the rating is predicated on the higher rating of the two, if PTSD symptoms had increased during this period, a rating reduction would not be warranted. As no VA examination assessing psychiatric symptoms was undertaken in the period following the initial grant of service connection and the proposed reduction, the RO therefore failed its duty in providing examinations that sufficiently examined whether the disability has improved. Accordingly, restoration of a 100 percent rating is warranted, and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.