Citation Nr: 21030564 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-00 556 DATE: May 19, 2021 ORDER The rating reduction for the Veteran's service-connected PTSD from 50 percent to 30 percent disabling, effective July 1, 2020 was improper, and the 50 percent rating is restored. REMANDED Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right shoulder condition is remanded. Entitlement to service connection for left shoulder condition is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to a rating in excess of 20 percent for L1-L2 compression fracture with degenerative disc disease is remanded. Entitlement to a higher rating for left radius and ulna fracture is remanded. Entitlement to a higher rating for left wrist compound fracture prior to February 15, 2016 is remanded. Entitlement to a rating in excess of 10 percent for left wrist compound fracture from February 15, 2016 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence of record does not show that the Veteran's service-connected PTSD has improved under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 50 percent disability rating from July 1, 2020 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 2005 to January 2010, with honorable service in Iraq. PTSD The Veteran seeks restoration of his 50 percent for his service-connected PTSD. During the May 2021 hearing, the Veteran testified that despite the findings the May 2019 VA examination upon which the reduction was based, his PTSD disability has not improved under ordinary conditions of life and work. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent evaluation is warranted for PTSD where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped 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; and difficulty in establishing and maintaining effective work and social relationships. Propriety of Rating Reduction As an initial matter because the PTSD rating reduction resulted in a reduction the amount of compensation payable to the Veteran, the procedural requirements of 38 C.F.R. § 3.105(e) apply. Here, the RO complied with those requirements in its June 2019 notice of the proposal to reduce the Veteran's PTSD disability rating, and the March 2020 rating decision reducing the rating. At the time the reduction became effective, July 1, 2020, evaluation for the Veteran's PTSD had been in effect for 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). The United States Court of Appeals for Veterans Claims (Court) has recently reiterated that when considering whether the AOJ properly reduced a veteran's rating that has been in effect for less than five years, the Board must determine whether an improvement in disability reflects an actual improvement in the ability to function under the ordinary conditions of life and work. . Stern v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 677 (Apr. 20, 2021). The Veteran was granted service connection for PTSD with an evaluation of 50 percent in an April 2014 rating decision. See April 2014 Rating Decision. The disability rating assigned was predicated on VA treatment records and a March 2014 VA examination. At a March 2014 VA examination, the Veteran's symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or events; impaired judgment; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work and a work-like setting. The June 2019 proposed rating reduction and the April 2020 effectuation of the proposed reduction was based on the May 2019 VA examination findings. The May 2019 VA examination report reflects that the Veteran's PTSD symptoms were productive of 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 the following symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often and chronic sleep impairment. The May 2019 VA examination and treatment records do not reflect improvement in family and social relationships. However, the examination reflects improvement in disturbances of motivation and mood; mild m loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work like setting. However, symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often and chronic sleep impairment continued or increased. Here, at the time of the rating reduction from 50 percent to 30 percent for service-connected to PTSD, the preponderance of the evidence does not show actual improvement that would continue under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 421; see also, 38 C.F.R. §§ 4.2, 4.10. Therefore, restoration of the 50 percent rating for PTSD from July 1, 2020, is warranted. Stern. Accordingly, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder, left shoulder, right knee and left knee condition. The Veteran seeks service connection for bilateral shoulder conditions and bilateral knee conditions that he states began during active duty service. The October 2011 VA examiner acknowledged the Veteran's pre-December 2005 diagnoses of bilateral shoulder strain and 2005 diagnosis of bilateral patellofemoral syndrome. See October 2011 VA Shoulder Examination; see also October 2011 Knee and Lower Leg Examination. The Board notes, that while the Veteran's STRs show treatment for bilateral knee patellofemoral syndrome in February 2009 without restriction, and treatment for shoulder pain that resolved, both knees and both shoulders were normal at his VA examination in October 2011. See October 2011 Knee and Lower Leg DBQ; see also October 2011 Shoulder and Arm DBQ. Specifically, the October 2011 VA examiner noted, that the Veteran had no current pathology for his right or left knee or right or left shoulder. Id. The Board notes that further development is needed to obtain any outstanding treatment records, which are only current through 2017. Additionally, because the Veteran served in Southwest Asia during the Persian Gulf War, the Board also finds that the examiner must again address whether he has an undiagnosed illness. See Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014), (holding, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases in which Veterans have served in the Persian Gulf since August 2, 1990). 2. Entitlement to a rating in excess of 50 percent for PTSD is remanded. With respect to whether a rating in excess of 50 percent is warranted for PTSD, the Board notes that further development is needed to obtain outstanding treatment records, which are only current through 2017. Once the outstanding records are obtained, a new VA examination is needed to ascertain the current severity of the Veteran's service-connected PTSD in light of the new records. 3. Entitlement to a compensable rating for left radius and ulna fracture; entitlement to a compensable rating for left wrist compound fracture prior to February 15, 2016 and entitlement to a rating in excess of 10 percent thereafter and entitlement to a rating in excess of 20 percent for L1-L2 compression fracture with degenerative disc disease are remanded. The Veteran asserts that his service-connected fracture, left radius and ulna; left wrist compound fracture and L1-L2 compression fracture with degenerative disc disease warrant increased ratings. See May 2021 Hr'g Tr. The Veteran was last afforded a VA examination in February 2016. Since then, the U.S. Court of Appeals for Veteran's Claims (the Court) issued the decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." (emphasis added). In light of these decisions, the Board finds that new VA examinations should be provided addressing the Veteran's left radius and ulna fracture; left wrist compound fracture and L1-L2 compression fracture with degenerative disc disease disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Board notes that further development is needed to obtain outstanding treatment records, which are only current through 2017. Once the outstanding records are obtained, new VA examinations are needed to ascertain the current severity of the Veteran's service-connected fracture, left radius and ulna; left wrist compound fracture and L1-L2 compression fracture with degenerative disc disease in light of the new records. 4. Entitlement to a TDIU is remanded. The Board finds that further development is needed to ascertain the Veteran's current level of education, special training, and previous work experience, as such is unclear and central to his claim because he has not completed and filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), which is necessary for VA to adjudicate this issue. The matters are REMANDED for the following action: 1. With assistance from the Veteran, identify and obtain all outstanding treatment records regarding the Veteran's claims. 2. Contact the Veteran and request that he complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service bilateral shoulder and bilateral knee symptomatology and the nature, extent and severity of his PTSD; left radius and ulna fracture, left wrist fracture and L1-L2 compression fracture with degenerative disc disease symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. Schedule the Veteran for appropriate VA examinations to determine the nature, onset and etiology of the symptoms of his right shoulder, left shoulder, right knee left knee conditions. The examiner is asked to review the pertinent evidence, including the Veteran's lay report regarding his symptoms and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to address each of the following questions: a. Please state whether the symptoms of each claimed condition are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? b. Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, (2) a diagnosable chronic multi symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis. c. If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an expert opinion as to whether it is related to a presumed environmental exposures experienced by the Veteran during service in Southwest Asia. d. Is it at least as likely as not that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? e. If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? f. If not directly related to service on the basis of questions (b)-(d), is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)? In answering all questions (a) to (f), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. The examiner must acknowledge and discuss the Veteran's lay evidence regarding the onset and recurrence of the Veteran's right shoulder, left shoulder, right knee and left knee problems during and since service. 5. Schedule the Veteran for a VA examination to determine the current nature, extent and severity of his psychiatric disability. 6. Schedule the Veteran for VA examinations to determine the current nature, extent and severity of his left radius and ulna fracture, left wrist fracture and low back disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Regarding the left radius and ulna fracture, left wrist fracture and low back disabilities, the examiner should identify all pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Regarding the back disability. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's left radius and ulna, left wrist and low back disabilities. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should describe in detail all current manifestations of the disabilities. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.