Citation Nr: 21030626 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-19 473 DATE: May 19, 2021 ORDER The reduction of the rating for lumbar spine degenerative disc disease was improper, and the 40 percent rating is restored, effective April 28, 2015. The reduction of the rating for cervical spine degenerative disc disease was improper, and the 30 percent rating is restored, effective April 28, 2015. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's lumbar spine degenerative disc disease did not show actual improvement under the normal circumstances of life during the pertinent appeal period. 2. The Veteran's cervical spine degenerative disc disease did not show actual improvement under the normal circumstances of life during the pertinent appeal period. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent rating for service-connected lumbar spine degenerative disc disease from April 28, 2015 to October 27, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.3, 4.10, 4.13. 2. The criteria for restoration of a 30 percent rating for service-connected cervical spine degenerative disc disease from April 28, 2015 to October 27, 2017, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.344, 4.1, 4.2, 4.3, 4.10, 4.13. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1982 to October 2002. The Veteran testified before the undersigned at a virtual tele-hearing in February 2021. A transcript of the hearing is associated with the claims file. Rating Reductions The Veteran has appealed the reduction of his lumbar spine and cervical spine disability ratings, which became effective on April 28, 2015. For the reasons that follow, the Board finds that both reductions were improper, and both the 40 percent (lumbar spine) and 30 percent (cervical spine) ratings are restored. By way of relevant history, an August 2003 rating decision granted service connection for lumbar spine degenerative disc disease and cervical spine degenerative disc disease and assigned each disability a 20 percent rating effective November 1, 2002. The Veteran filed an increased rating claim in May 2011, and a June 2013 rating decision increased the rating for the lumbar spine to 40 percent, effective May 4, 2011, and increased the rating for the cervical spine to 30 percent, effective May 4, 2011. The Veteran did not appeal those increases. In January 2015, he filed an application for a TDIU, and in connection with that claim, underwent VA examinations for his lumbar and cervical spine disabilities in April 2015. In a May 2015 rating decision, the RO decreased the ratings for both disabilities to 20 percent each, effective April 28, 2015. The Veteran filed a timely Notice of Disagreement (NOD) requesting reinstatement of the 40 percent (lumbar spine) and 30 percent (cervical spine) ratings. During the course of the appeal, a May 2018 rating decision granted an increased 40 percent rating for the lumbar spine, effective October 27, 2017, and granted an increased 30 percent rating for the cervical spine, effective October 27, 2017. Therefore, the question at issue is whether reinstatement of the 40 percent (lumbar spine) and 30 percent (cervical spine) ratings are warranted for the time period from April 28, 2015 through October 27, 2017. The United States Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Specifically, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the Veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." Id. at 421. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability had actually occurred, but also that the improvement reflects an improvement under the ordinary conditions of life and work. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. There are higher evidentiary requirements for reducing ratings that have been at the same level for more than five years, which is not the case in this appeal. 38 C.F.R. § 3.344(c). Pursuant to 38 C.F.R. § 3.105(e), when the Agency of Original Jurisdiction (AOJ) determines that a rating reduction is warranted, it is ordinarily required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced. However, VA's General Counsel has held that 38 C.F.R. § 3.105(e) does not apply where there is no reduction in the amount of compensation payable. It is only applicable where there is both a reduction in evaluation and a reduction or discontinuance of compensation payable. Therefore, where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) is not applicable. See VAOPGCPREC 71-91 (Nov. 1991). Such is the case here. Indeed, although the AOJ reduced the ratings for the Veteran's lumbar spine and cervical spine disabilities in the May 2015 rating decision, in the same decision, the AOJ also awarded service connection for separate disabilities and assigned ratings. As such, there was no decrease in compensation payments, and the notice requirements outlined in 38 C.F.R. § 3.105(e) are not applicable. That stated, for the reasons discussed below, the Board finds that evidence of improvement was not demonstrated at the time of the May 2015 rating decision, and the reductions were therefore improper. The AOJ reduced the ratings for both the lumbar spine and cervical spine disabilities, based on findings from April 2015 VA examinations demonstrating improved range of motion findings. Pertinently, however, the Veteran has explained on multiple occasions since the April 2015 examinations that he took pain medication the morning of the examinations and such accounted for the improved range of motion findings. Specifically, at his February 2021 Board hearing, he testified that his back and neck conditions had essentially remained the same ever since 2015, and that on the morning of his April 2015 examinations, he was in so much pain that he took medication. See Hearing Transcript at p. 3. The Veteran said the same thing in his May 2015 Notice of Disagreement, and those statements are consistent with the fact that a subsequent, May 2018 rating decision again increased the ratings back to 40 percent disabling (lumbar spine) and 30 percent disabling (cervical spine). Given the foregoing, the Board does not find that an improvement in the Veteran's ability to function under the ordinary conditions of life and work was adequately demonstrated upon review of the April 2015 VA examinations in their entirety. Consequently, the Board finds that the reduction from 40 percent to 20 percent, for the Veteran's lumbar spine disability, and the reduction from 30 to 20 percent, for the Veteran's cervical spine disability, effective April 28, 2015, were improper, and both ratings are restored as of that date. The Board recognizes that a claim stemming from a rating reduction is a claim for restoration of the prior rating and typically, does not contemplate a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). Nevertheless, the Board has considered whether the record has also raised the issue of whether even higher ratings than those presently assigned are warranted. In his May 2015 NOD, the Veteran clearly indicated that he was only seeking reinstatement of the reduced ratings, and in his April 2017 VA Form 9, the Veteran indicated that he was only appealing the reduction of the ratings insofar as he explained that his range of motion had always met the criteria for 40 percent and 30 percent ratings. Finally, at his February 2021 Board hearing, the Veteran testified that his back and neck disabilities had remained the same since 2015. See Transcript at p. 4. Given the foregoing, the Board concludes that the issue of higher ratings for the Veteran's lumbar spine and cervical spine are not on appeal, and that restoration of the previously reduced ratings satisfies the Veteran's appeal in full. REASONS FOR REMAND The Board initially notes that the AOJ first denied the Veteran's claim for service connection for PTSD in a June 2013 rating decision. However, within one year, the Veteran submitted additional evidence, including medical records showing a diagnosis of PTSD, as well as lay statements regarding his in-service stressors, all of which is considered new and material under the provisions of 38 C.F.R. § 3.156(b). His claim was denied again in a July 2015 rating decision, and the Veteran timely disagreed with that determination. Because the Veteran submitted new and material evidence within one year of his June 2013 rating decision, such evidence is considered as having been filed in connection with the original claim pending at the beginning of the appeal period. As such, the Veteran's original claim remains pending, and the Board need not reopen the Veteran's service-connection claim before addressing its merits. See 38 C.F.R. § 3.156(b). The Veteran has set forth several stressor events from service that he contends led to his diagnosed PTSD. Specifically, he has indicated that he served in conflict areas including in Libya and the Persian Gulf zone, including in Iran and Iraq in the 1990s. He has stated that he first noticed PTSD symptoms while stationed on a ship in Libya, where he felt a constant threat of attack while having to be on watch. See March 2013 Statement in Support of Claim. In a September 2014 Memorandum, the Joint Service Records Research Center (JSRRC) Coordinator made a formal finding of a lack of information required to corroborate stressors associated with a claim of service connection for PTSD. Specifically, the Coordinator noted that although the ships on which he was aboard were deployed during conflicts, the ships were not directly involved in conflicts according to the Veteran's personnel files, such that corroboration was not feasible. That finding notwithstanding, the Veteran has also submitted evidence of non-combat stressors and has provided specific details as requested by the AOJ. In a May 2013 statement, the Veteran indicated that while on duty at an Alameda, California Naval Air Station, he discovered the body of a soldier who had committed suicide. He provided the name of the ship on which the soldier was stationed as well as a month and year. He also provided details of witnessing a fighter plane crash, including a specific time, date, and year. Finally, he has indicated that he witnessed a Nicaraguan man dressed in camouflage shoot a child in the face while he was on duty with the U.S.S. Mahan in September 1985. While an April 2013 deferred rating decision notes that those stressors were to be developed upon receiving more detailed information from the Veteranwhich he providedit is not clear if these stressors were subsequently researched or developed; accordingly, such should be accomplished on Remand. Once the stressor development has been completed, the AOJ should schedule the Veteran for a VA mental health examination with a qualified VA clinician. In this regard, while the Board observes that there is a January 2021 letter from the Veteran's provider linking the Veteran's PTSD to his service, there is no detail or rationale accompanying that conclusion. The most recent VA treatment records date from March 2018, and the record indicates that the Veteran continues to receive VA treatment. Accordingly, remand is also required to allow VA to obtain updated VA treatment records. The Board also notes that records from the Social Security Administration (SSA) have been associated with the claims file; however, it appears that the records may be incomplete. In this regard, the only SSA record is a disability report completed by the Veteran in April 2015. There are no determinations or medical records relied upon for any determinations. Therefore, the AOJ should attempt to obtain the Veteran's complete SSA records. Last, because the Board is remanding the claim of service connection for PTSD, and because the record appears to be incomplete, as noted above, with regard to outstanding VA treatment and SSA records, the Board finds that adjudiation of the issue of entitlement to a TDIU must be deferred. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated from March 2018. 2. Contact the SSA and request all pertinent documentation pertaining to any claim for disability benefits by the Veteran including any medical records relied upon in deciding any claims. All efforts to obtain the records should be associated with the claims file. 3. Conduct all development necessary to attempt to corroborate the Veteran's stressors, as detailed in his statement submitted in May 2013. Requests should be sent to all appropriate research agencies. Make as many requests as necessary to obtain any requested information. If more details are needed, contact the Veteran to request the information; any contact should be documented in the claims file. 4. After updating the file with any additional records or findings from above, schedule the Veteran for a mental health examination to determine whether any currently diagnosed acquired psychiatric disorders, to include PTSD, had onset in, or are otherwise related to his military service. The record must be made available to the examiner. The examiner should take a history from the Veteran as to the onset and progression of his claimed psychiatric conditions. Following a review of the entire record, to include the Veteran's lay statements concerning the onset of symptoms, the examiner should address the following: (a.) Clarify the Veteran's acquired psychiatric disorders. In this regard, the record shows a diagnosis of PTSD. If current diagnoses conflict with prior diagnoses, the examiner must reconcile his or her findings in that regard. If PTSD is diagnosed, the stressor(s) to support such diagnosis must be identified. (b.) With regard to any identified psychiatric disorder, to include PTSD, is it at least as likely as not (a probability of 50 percent or greater) that such had onset in, or is otherwise related to the Veteran's period of active military service? In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements concerning the onset and progression of symptoms, as well as the January 2021 private opinion and corresponding treatment records submitted from Dr. C.L. The examiner should consider the Veteran's stressor reports. A complete rationale must be provided for any opinion offered, and must reflect consideration of all pertinent lay and medical evidence. 5. Thereafter, readjudicate the issues on appeal, to include whether entitlement to a TDIU is warranted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.