Citation Nr: 21023985 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 19-36 152 DATE: April 21, 2021 ORDER The rating reduction for service-connected post-traumatic stress disorder (PTSD) from 70 to 30 percent, effective May 1, 2019, was improper, and the 70 percent rating is restored, effective May 1, 2019. Entitlement to a total disability rating based on individual unemployability (TDIU) beginning September 10, 2009 is granted. Entitlement to Dependents' Educational Assistance (DEA) beginning September 10, 2009 is granted. REMANDED Entitlement to a disability rating in excess of 70 percent for PTSD is remanded. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran’s service-connected PTSD improved to the point that he is better able to function under the ordinary conditions of life and work beginning May 1, 2019. 2. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation beginning September 10, 2009. 3. Based on the grant for a TDIU herein, the Veteran met the basic eligibility requirements for Chapter 35 benefits as of September 10, 2009. CONCLUSIONS OF LAW 1. The criteria for restoring the rating reduction for the Veteran’s service-connected PTSD to 70 percent beginning May 1, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.159, 3.344. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. 3. The criteria for entitlement to DEA have been met. 38 U.S.C. §§ 3500, 3501, 5102, 5107; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1985 to March 1988 and December 2003 to June 2005, including service in the Persian Gulf. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in March 2021. 1. The rating reduction for service-connected PTSD from 70 to 30 percent, effective May 1, 2019, was improper, and the 70 percent rating is restored. The Veteran seeks restoration of the 70 percent rating for his service-connected PTSD beginning May 1, 2019. During the March 2021 hearing, the Veteran testified that despite the findings of the January 2019 VA examination upon which the reduction was based, his PTSD did not improve under the ordinary conditions of life and work. As an initial matter, the Board notes that the reduction is not invalid due to a procedural defect under 38 C.F.R. § 3.105(e). Further, the Veteran’s service-connected PTSD was rated at 70 percent disabling for less than five years. As such, the heightened protections of 38 C.F.R. § 3.344(a) do not apply. The Veteran’s service-connected PTSD has also recently been assigned a temporary total evaluation for the period from December 11, 2019 to February 1, 2020 and from February 22, 2021 to May 2, 2021; as such, the Board will not address the time periods when the Veteran was temporarily totally disabled. Nevertheless, it is well established that VA cannot reduce a veteran’s disability evaluation without first finding that the service-connected disability has improved to the point that the veteran is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 421 (1993). The evidence must reflect an actual change in the veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. In a rating reduction case, VA has the burden of establishing that the disability has improved. The Board finds that the competent medical and lay evidence shows that the Veteran’s PTSD did not improve to the point that he was better able to function under the ordinary conditions of life and work beginning May 1, 2019. During the January 2019 VA examination upon which the reduction was based, the Veteran reported that he thinks about his military trauma every day. He reported difficulty getting thoughts out of his mind about the war and estimated that he experiences nightmares twice per week. The Veteran stated that he has difficulty falling and staying asleep at night and stated that he is often guarded, anxious, suspicious, and has difficulty being in crowds. Although the examiner noted improvement in symptoms, the Veteran disagreed with the examiner on his Notice of Disagreement and stated that he was late to the appointment and the examination was shortened. See Notice of Disagreement, February 2019; see also VA Form 9, November 2019. In addition, during the March 2021 hearing, the Veteran testified that his PTSD has worsened. He stated that he has depression, sleep problems, anger issues, is haunted by memories of Iraq, and has attempted suicide. The Veteran is competent to report the symptoms and functional impairments he experiences, and the Board finds his reports to be credible. See 38 C.F.R. § 3.159(a); see also Layno v. Brown, 6 Vet. App. 465 (1994). As such, the Board finds that the evidence shows no improvement in the Veteran’s PTSD and thus no change in the Veteran’s ability to function, as he has consistently reported severe PTSD symptoms. Therefore, the Board restores the 70 percent rating for the Veteran’s PTSD beginning May 1, 2019. 2. Entitlement to a TDIU. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In a September 2010 rating decision, the Veteran was granted TDIU, effective September 10, 2009 because the records show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, in a February 2019 rating decision, the Veteran’s PTSD was reduced to 30 percent disabling and his TDIU was discontinued due to no longer meeting the schedular requirements. In light of the above restoration of 70 percent for the Veteran’s service-connected PTSD, the Board finds that the Veteran’s service-connected disabilities meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran’s service-connected disabilities impact his ability to secure or follow gainful employment. 38 C.F.R. § 4.16.  The Veteran continues to assert that the impact of his service-connected disabilities causes him to be unable to secure or follow a substantially gainful occupation. During the March 2021 hearing, the Veteran testified that he has not been working. He stated that he volunteered and attempted slight employment but was fired due to his PTSD symptoms. On his TDIU application, the Veteran reported that he last worked full-time on September 6, 2008. See VA Form 21-8940, March 2010. The Veteran’s education consists of four years of high school and Human Service Technology training. Given the September 2010 rating decision findings that the Veteran is entitled to a TDIU and the continued evidence regarding the severity of the Veteran’s service-connected disabilities, the Veteran’s functional limitations due to his service-connected disabilities, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating beginning September 10, 2009, the date the Veteran meets the schedular requirements. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). 3. Entitlement to DEA. Amongst other things, basic eligibility for certification of Survivors’ and DEA benefits exists if the veteran has a permanent total service-connected disability. By virtue of the decision above, the Veteran has had a permanent and total service-connected disability since September 10, 2009. Accordingly, the criteria for basic eligibility for Chapter 35 benefits are established from that date. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for PTSD is remanded. During the March 2021 hearing, the Veteran testified that his PTSD has worsened, and he seeks a 100 percent rating. He stated that he has depression, sleep problems, anger issues, is haunted by memories of Iraq, and has attempted suicide. Given the Veteran’s testimony, the Board finds a remand necessary to afford the Veteran a new VA examination to determine the current severity of his service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain outstanding records of the Veteran’s treatment for psychiatric disability. 2. Schedule the Veteran for appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature, severity, and extent of his psychiatric disability. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.