Citation Nr: 21029841 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-16 067 DATE: May 17, 2021 ORDER Entitlement to restoration of a 50 percent rating for service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood is granted. REMANDED Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT At the time of the November 2016 rating decision reducing the Veteran's evaluation for this condition, there had not been an actual change in the severity of the service-connected acquired psychiatric disorder and she continued to have symptoms of anxiety, depressed mood, chronic sleep impairment, and panic attacks more than once a week that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The RO's decision to reduce from 50 percent to 30 percent the rating for service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood, effective February 1, 2017, was improper and restoration of the 50 percent rating is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e) and 4.130 (DC 9411). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 2012 to August 2015. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 Board Hearing. The claims file contains a transcript of the hearing. For conciseness and clarity, the Veteran's service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood is referred to simply as "PTSD" throughout this decision. Importantly, the Veteran filed a notice of disagreement with the November 2016 rating decision which reduced the evaluation for her service-connected PTSD and stated: I don't have much proof of this as I haven't been able to keep or get a new job but I get anxiety attacks when I'm working alone and even when I'm not working talking to people make[s] me nervous and I started [fidgeting] and stuttering. November 2016 Notice of Disagreement. At the time she filed her notice of disagreement, the Veteran was unrepresented and acting pro se. "[T]he Board has a special obligation to read pro se filings liberally." See Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir. 2009); Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) ("A liberal and sympathetic reading of appeal submissions is necessary because a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits."); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (emphasizing that pro se filings must be read liberally); Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) ("the Board is required to address all claims reasonably raised in the Appellant's Substantive Appeal and in all of his documents and oral testimony submitted prior to the Board's decision"). The Veteran's notice of disagreement raised the prospect of entitlement to a TDIU. Applying the forgoing principles with respect to liberally and sympathetically reading pro se pleadings, the Board finds the notice of disagreement also constituted a request for a higher rating. While she wrote in "50%" in the box for "percentage evaluation sought" on her NOD, the fact that she wrote a narrative explaining the impact of her condition on her ability to get a job and her report of serious, continuing symptoms is sufficient in the circumstances of this case to raise the issue of entitlement to a rating in excess of 50 percent. The Board will not elevate form over substance. As the Comer Court put it: "a pro se veteran may lack a complete understanding of the subtle differences in various forms of VA disability benefits and of the sometimes arcane terminology used to describe those benefits." The Veteran sufficiently raised the issue of serious symptoms that had a greater impact on her social and occupational functioning than the current rating suggested. And, in fact, the RO interpreted her claim as one for an increased rating. See February 2017 SOC (recharacterizing the issue on appeal as "entitlement to a higher evaluation of posttraumatic stress disorder (previously included adjustment disorder with mixed anxiety and depressed mood) currently evaluated as 30 percent disabling"). The Board may exercise jurisdiction over the Veteran's claims of entitlement to a rating in excess of 50 percent for her acquired psychiatric disorder and of entitlement to a TDIU and, for the foregoing reasons, the Board will do so. 38 C.F.R. § 20.104(a). As discussed below, those claims will be remanded. However, the Board will adjudicate the merits of the propriety of the reduction. The Veteran, her representative, and the RO should understand that the Board's decision regarding the propriety of the reduction is not meant to make and should not be interpreted as making any factual or legal finding with regard to whether the Veteran is entitled to a rating in excess of 50 percent during any relevant time period. The finding of fact above is made only in the context of whether a 50 percent rating should be restored and should not be considered a final decision regarding the maximum rating, to include the possibility of a TDIU, warranted for the Veteran's PTSD. The Board has adjudicated whether the reduction was proper and found that it was not based primarily on the fact that the evidence was against the conclusion that the Veteran's PTSD had improved. The Veteran is free to argue upon adjudication of her increased rating claim that her condition had worsened or, even if it had not worsened, that the symptoms and functional limitations of her PTSD warranted a higher rating (to include a TDIU). 1. Entitlement to restoration of a 50 percent rating for service-connected PTSD The Veteran seeks a restoration of a 50 percent rating for service-connected PTSD including because she alleges that the RO erred in evaluating her PTSD. In a September 2015 rating decision, VA granted service connection for PTSD and assigned a rating of 50 percent effective August 30, 2015. This matter arises from a series of RO determinations that resulted in a reduction of her rating for PTSD from 50 percent to 30 percent. An August 2016 rating decision proposed to reduce the evaluation of her PTSD from 50 percent to 0 percent due to the Veteran's failure to attend a scheduled VA examination. The rating decision informed the Veteran, if the proposed reduction became final, the overall combined evaluation of all of her service-connected disabilities would be 10 percent. It further noted that, if VA did not receive additional evidence from the Veteran within 60 days, VA would reduce her benefits as proposed. The Veteran promptly responded with an explanation for missing the scheduled exam, including the lack of "ample transportation" and lack of alternative childcare. See September 2015 Report of General Information. She promised to attend future examinations. VA then scheduled an October 2016 VA examination. Based on the October 2016 VA examination, the RO issued a November 2016 rating decision that reduced the evaluation of the Veteran's PTSD from 50 percent to 30 percent effective February 1, 2017. The Board has some concerns regarding the procedure in this matter. The initial notice required under 38 C.F.R. § 3.105(e) proposed a reduction from 50 percent to 0 percent based on the Veteran's failure to attend a VA examination. Thereafter, the RO reduced the Veteran's rating from 50 percent to 30 percent based on the results of a VA examination. In other words, the reduction and the basis for the reduction were both different from the proposed reduction and the basis for the proposed reduction. However, for reasons discussed below, the Board will not resolve whether a smaller than proposed reduction based on newly developed facts violates the provisions of 38 C.F.R. § 3.105(e). There are several VA regulations applicable to all rating reductions. Specifically, 38 C.F.R. § 4.1 states that "it is . . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 establishes that "it 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 disability present." Furthermore, 38 C.F.R. § 4.13 provides: "When any change in evaluation is to be made, 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 the use of descriptive terms." The rating reduction in this case did not comply with these requirements. The November 2016 rating decision was based solely on the results of the October 2016 VA examination. Although the rating decision included a boilerplate reference to "Review of Claim File" [sic] in the list of evidence considered, the substance of the decision refers only to the most recent VA examination and does not mention or discuss the Veteran's ongoing treatment for the service-connected disability. This is significant because VA treatment records contemporaneous with the VA examination document increased, not decreased, symptoms. See, e.g., October 2016 VA Psychiatry Note (documenting nightmares 1-2x/week; Veteran reported increase in anxiety if ex-husband comes over or is in group of people and reports that, with anxiety, she will get nausea, hard to breath, feels like crying, experiences anxiety once a day at least which lasts 30-60 minutes; anxiety can also be triggered by being alone; "continues to have significant PTSD and anxiety symptoms"). While there are some earlier records during this period which had indicated some improvement on medication, the fact that her symptoms would decrease and increase strongly suggests there was not "an actual change in the condition," but that the Veteran's complex mental health status was characterized by waxing and waning of symptoms, particularly as new medications were tried. See April 2016 VA Psychiatry Note (continuing diagnoses of PTSD, depression, OCD, and panic attacks, but noting improvement in mood, decrease in depression and anxiety, and improvement in sleep, including no recent nightmares, after starting a new medication, but still emotionally detached, depression at night; "Problem: PTSD... continues to have symptoms; feels emotionally detached"; "Problem: anxiety... Pt worries about everyday things; sleep has improved; worries about finances"). In short, the VA treatment records provided important context to the overall disability picture. The October 2016 treatment record specifically indicates daily attacks of anxiety that resulted in nausea, difficulty breathing, and feeling like crying (i.e., daily panic attacks) which is listed in the criteria for a 50 percent rating and this symptom was part of the basis of the initial award of a 50 percent rating. Similarly, August 2016 VA treatment records document that the Veteran had recently become homeless due to deteriorating relationship with her mother (with whom she had been living). Likewise, she had last attempted employment in January 2016 and remained unemployed through the remainder of 2016. These facts are highly suggestive of difficulty in establishing and maintaining effective work and social relationships. With respect to the October 2016 VA examination, the examiner only diagnosed and evaluated PTSD. The VA treatment records throughout the period from August 2015 through October 2016 (and continuing the present, in fact) continued to diagnosed PTSD, depression, OCD, and anxiety. The examiner documented that the Veteran "reports struggling with depression" and noted the treatment by a VA psychiatrist (including treatment with venlafaxine which is a drug used to treat depression and anxiety), but failed to diagnose depression or state an opinion that the condition had improved or resolved such that the diagnosis should be dropped. Therefore, the October 2016 VA examiner's statement that the Veteran does not "have more than one mental disorder diagnosed" contradicts the entirety of the Veteran's VA treatment records and renders the examination inadequate to support a reduction. The Veteran had then and has now multiple diagnoses of mental disorders in addition to PTSD. There is no need to belabor the point. The reduction was not warranted by the medical evidence of record at the time of the reduction. Subsequent medical records provide a further reason to vacate the reduction and restore the 50 percent rating. For the above reasons, including the reasonable doubt that the medical evidence warranted a rating reduction, the Board finds that the reduction from 50 percent to 30 percent of the rating for the Veteran's service-connected PTSD, effective February 1, 2017, was improper and restoration of the 50 percent rating is warranted. 38 U.S.C. § 5107(b). The Board notes that the change in description of the service-connected acquired psychiatric disability was changed from "posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood" to "posttraumatic stress disorder (previously included adjustment disorder, with mixed anxiety and depressed mood)." Upon implementation of this decision, the RO should reinstate the previous characterization. As discussed above, the October 2016 VA examination failed to address the diagnoses other than PTSD and provides an inadequate basis to recharacterize the Veteran's service-connected acquired psychiatric disorder. The Veteran is entitled to restoration of a 50 percent rating for posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for radiculopathy of the left upper extremity involving the musculospiral (radial) nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood is remanded. As discussed in the Introduction, the Veteran raised the issue of entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. Notwithstanding the characterization of the claim in the February 2017 SOC, that claim has not been fully developed and adjudicated. As discussed with respect to the propriety of the reduction, the October 2016 VA examination appears only to address PTSD and not the also diagnosed and service-connected adjustment disorder with mixed anxiety and depressed mood. To the extent the examiner intended to indicate the diagnosis had changed, the contemporaneous treatment records conflict with that conclusion and it is not sufficiently explained to be adequate. Therefore, remand for an adequate examination is necessary. Moreover, sufficient time has passed since October 2016 that an updated VA examination is appropriate in any case. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that, where the veteran claims a disability is worse than when originally rated and the evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. As discussed in the Introduction, the Veteran raised the issue during the course of this appeal and, so, the Board has jurisdiction of that claim. The AOJ has not yet developed or adjudicated the claim of entitlement to a TDIU. Moreover, additional, pertinent, evidence has been added to the claims file since the AOJ adjudicated the increased rating claim. Therefore, remand is necessary to permit the AOJ to conduct appropriate development and initially adjudicate the claim with consideration of the evidence that has been added to the claims file during the pendency of this appeal. As the RO recently provided examinations for the Veteran's service-connected back and headache disorders, no further development is needed on those conditions. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from April 2021 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. [It appears the RO may be in the process of scheduling a psychiatric examination to consider TDIU. If that is completed, there is no need to schedule another exam pursuant to this remand.] The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to her posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood alone. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.