Citation Nr: 21041684 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-02 420 DATE: July 9, 2021 ORDER Restoration of a 50 percent rating for posttraumatic stress disorder (PTSD) is granted, effective July 1, 2018, subject to the laws and regulations governing the payment of benefits. The appeal from the denial of the claim for an increased rating in excess of 10 percent for tinnitus is dismissed. The application to reopen the claim for service connection for hypertension as secondary to PTSD is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's PTSD did not materially improve under the ordinary conditions of daily life and work from July 1, 2018. 2. In April 2021, prior to the promulgation of a Board decision in the matter of entitlement to an increased rating in excess of 10 percent for tinnitus, the Veteran requested that his appeal in this matter be withdrawn; there are no questions of fact or law in this matter remaining for the Board to consider. 3. The most recent final denial of the Veteran's claim for service connection for hypertension as secondary to PTSD was a rating decision issued in October 2012; the Veteran did not appeal this decision and new and material evidence was not actually or constructively received within the one-year appeal period. 4. Although new, the evidence added to the record since the October 2012 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for hypertension secondary to PTSD and does not raise a reasonable possibility of substantiating the claim or trigger the VA Secretary's duty to assist or consider an alternative theory of entitlement. CONCLUSIONS OF LAW 1. The reduction from 50 percent to 30 percent for PTSD was not warranted; the criteria for restoration of a 50 percent rating for PTSD, from July 1, 2018, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.13 (2020). 2. The criteria for withdrawal of the claim for an increased rating in excess of 10 percent for tinnitus by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § § 19.55 (2020). 3. The October 2012 rating decision which denied service connection for hypertension as secondary to PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2020). 4. New and material evidence has not been received to reopen the Veteran's claim for service connection for hypertension as secondary to PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to August 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO): a June 2015 rating decision which granted service connection for bilateral hearing loss with an initial rating of 20 percent; and an April 2018 rating decision which denied an increased rating for tinnitus, denied service connection for hypertension, denied TDIU, and reduced the rating for PTSD from 50 percent to 30 percent effective July 1, 2018. In April 2021, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. Increased Rating 1. Entitlement to restoration of the 50 percent rating for posttraumatic stress disorder (PTSD), effective July 1, 2018 The Veteran disputes the reduction of the rating for PTSD from 50 to 30 percent, effective July 1, 2018. As a preliminary matter, the Veteran and his counsel argued in the April 2021 hearing and in earlier briefs that the Veteran's PTSD warrants an increase beyond the 50 percent rating. Unfortunately, the Veteran has not yet filed a claim for an increased rating for this PTSD and thus there is no rating decision denying such an increase on appeal to the Board. The issue before the Board is whether the rating reduction from 50 to 30 percent was warranted. The regulatory provisions pertaining to rating reductions contain notification and due process requirements that fall outside the ambit of the Veterans Claims Assistance Act (VCAA). See 38 C.F.R. § 3.105(e). Accordingly, where a reduction in a rating would not result in a decrease in the overall amount of compensation payable, there are no procedural requirements. In this case, the due process provisions outlined in 38 C.F.R. § 3.105 apply because the reduction resulted in a decrease in the Veteran's combined evaluation for compensation from 60 to 50 percent, effective July 1, 2018. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29-97 (Aug. 1997). Generally, 38 C.F.R. § 3.105(e) allows for a reduction in the evaluation of a service-connected disability when warranted by the evidence and, if applicable, certain procedural guidelines have been followed. 38 C.F.R. §§ 3.105(e), (i)(2)(i). There are procedural protections that apply to stabilized disability ratings that "have continued for long periods at the same level (5 years or more)." 38 C.F.R. § 3.344(c). The use of parentheses in 38 C.F.R. § 3.344(c) suggests that the five- year time frame is a guideline, not a mandatory minimum time period. See Lehman v. Derwinski, 1 Vet. App. 339 (1991). At the time of the April 2018 rating decision which reduced the rating, the Veteran's 50 percent evaluation had been in effect for more than five years (since the March 6, 2007 rating decision). Several regulations apply to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. VA rating reductions, as with all VA rating decisions, must be based upon review of the entire history of a veteran's disability. See Brown v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction is not proper unless a veteran's disability shows actual improvement in the ability to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014). The evidence must reflect an actual change in the condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. It must be determined that any such improvement also reflects an improvement in a veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 3.344(c), 4.2, 4.10. In a rating reduction case, VA has the burden to establish that the disability has improved. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Board must focus on the evidence available to the RO at the time the reduction was made, although post-reduction medical evidence may be considered in the context of evaluating whether the disability actually improved. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). In this case, when looking at the evidence for which the RO considered when assigning a 50 percent disability rating, and when looking at the evidence for which the RO considered at the time the reduction was made, the Board finds that the rating reduction was not proper because the evidence of record fails to show actual improvement in the ability to function under the ordinary conditions of life and work. Effective March 9, 2005, the Veteran was granted a 50 percent disability rating for PTSD based on evidence that he had nightmares, difficulty sleeping, intrusive memories, hypervigilance, avoidance of crowds, loneliness, exaggerated startle response, and poor concentration. See November 2005 VA examination. The RO relied on DBQs from June 2015 and August 2017 in deciding to reduce the rating from 50 to 30 percent. The June 2015 VA DBQ stated that the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency only during periods of significant stress, or symptoms controlled by medication. The June 2015 DBQ noted a February 2015 VA treatment note which described the Veteran's symptoms as much improved since starting Zoloft, particularly nightmares, irritability, and panic. The June 2015 DBQ described the Veteran as well-groomed with a calm and pleasant manner and his mood as normal, with spontaneous speech and no signs of psychosis or unusual behavior. The Veteran reported depression, difficulty sleeping, and intrusive thoughts about the Vietnam War. The August 2017 DBQ stated that the Veteran continued to live alone, had never married, had no children, and had two friends he would see at times. The examiner stated that the Veteran had recurrent involuntary memories of stressor events, dreams of the stressor events, a marked physiological reaction to same, and avoidance of distressing memories and thoughts, persistent negative beliefs, persistent feelings of detachment or estrangement, persistent inability to experience positive emotions, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, and sleep disturbances. The Veteran reported intrusive memories and difficulty sleeping, and the examiner said that the Veteran had moderate symptoms of depression and mild PTSD. At the time of the April 24, 2018, reduction in rating, the record also included the March 2018 medical opinion of private psychologist Dr. L. Dr. L's evaluation stated that the Veteran's speech was understandable and coherent, his mood depressed, and he denied hallucinations and delusions but admitted feelings of disappointment, confusion, anger, fear, depression, and difficulty sleeping. Dr. L. found that the Veteran had impaired short-term memory. The Veteran reported painful memories of trauma in service which affected his daily activities and caused significant distress, as well as loss of interest in activities, diminished energy, depressed mood, problems concentrating, difficulty remembering things, and a sense of hopelessness. The Veteran had no suicidal intentions. Dr. L. noted that the Veteran never married, worked in construction after service, and became a self-employed auto mechanic later. He noted that the Veteran is now retired and socializes occasionally with a few old friends. The Veteran was and is currently using medications for depression, PTSD, and sleep problems. The Veteran had repeated disturbing thoughts, memories, and images of military trauma brought on by loud or sudden noises or discussion of military topics; avoidance of things that remind him of war; loss of interest in formerly enjoyable pursuits; emotional numbing; a sense of a foreshortened future; angry outbursts; constant irritability; he was easily startled and always vigilant; he felt cut off from others; and he had trouble sleeping even with medications. Dr. L. said that the Veteran's ability to stay on task and adapt to work settings is markedly impaired by chronic PTSD and secondary depression, and that he has total occupational and social impairment with reduced reliability and productivity due to limited ability to concentrate and engage in self-management, difficulty understanding complex commands, mood disturbance and inability to establish and maintain effective work and social relationships. Dr. L. said that the Veteran has been unable to engage in substantially gainful or marginally gainful employment since March 9, 2005, the effective date for service-connection for PTSD. Considering all of this evidence, the record does not indicate an actual improvement of symptoms effective July 1, 2018, because the Veteran continued to experience depression, intrusive memories, social isolation, memory impairment, chronic sleep impairment, difficulty concentrating, and nightmares. Thus, the rating reduction was not warranted. Accordingly, the 50 percent rating for the Veteran's PTSD will be restored effective July 1, 2018, the date of the reduction. 2. Entitlement to an increased rating in excess of 10 percent for tinnitus The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative (in writing or on the record at a hearing) at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal is effective when received. 38 C.F.R. § 20.204(b)(3). 38 C.F.R. § 20.204 has been renumbered and amended as 38 C.F.R. § 19.55 pursuant to the regulatory changes implementing the Appeals Modernization Act. Unless its predecessor regulation, 38 C.F.R. § 20.204, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. With regard to such oral withdrawals generally, however, the Court has held, "withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his or her appeal must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims," Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the hearing before the Board in April 2021, the Veteran requested the withdrawal of the appeal seeking entitlement to an increased rating in excess of 10 percent for tinnitus (See Hearing Transcript, pages 2-3). The transcript demonstrates that the Veteran was advised of the consequences of withdrawing the appeal, that the Veteran and his representative participated in a meaningful manner in the hearing, and that they were aware of the consequences of withdrawal of the claim at the time. The Board finds that the Veteran's withdrawal was explicit, unambiguous and done with a full understanding of the consequences of such action. Given these circumstances, the Veteran met the requirements necessary for an effective oral withdrawal of this appeal. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, as the Veteran has effectively requested to withdraw the appeal, there remain no allegations of errors of fact or law for appellate consideration on the issue of service connection for a left shoulder condition. Accordingly, the Board does not have jurisdiction to review the claim and it is dismissed. 3. New and material evidence to reopen the claim for service connection for hypertension as secondary to PTSD The claim for service connection for hypertension as secondary to PTSD was originally denied in an October 2007 rating decision based on a finding that there was no evidence of a relationship between the hypertension and PTSD and that there was no evidence of hypertension during service. In response to a request for reconsideration, the RO issued a second rating decision denying the claim in February 2008. The Veteran filed a Notice of Disagreement and, in response, the RO issued a Statement of the Case confirming the denial of service connection in September 2009. The Veteran did not appeal this decision, nor was any new and material evidence actually or constructively received within 60 days of issuance of the statement of the case; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. The Veteran submitted a petition to reopen the claim in January 2012. An October 2012 rating decision declined to reopen the claim seeking service connection for hypertension as secondary to PTSD. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.156(b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Regardless of the RO's determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. At the time of the last final denial in October 2012, the evidence included VA treatment records. VA treatment records showed diagnoses of hypertension beginning in 2001. A September 2012 Disability Benefits Questionnaire (DBQ) for hypertensions stated that the Veteran had essential hypertension and was being treated with medication. The examiner opined that the hypertension was not caused by or the result of PTSD. The Veteran has not submitted new and material evidence regarding his hypertension since the October 2012 rating decision declining to reopen the claim for service connection. More recent VA treatment records show that hypertension has continued to be listed as a problem for the Veteran and an October 2018 record states that the Veteran was offered a consult to the dietician due to his hypertension but declined. At the April 2021 hearing before the Board, the Veteran testified that some people now believe that PTSD can aggravate hypertension. Although the Veteran's testimony before the Board and the VA treatment records showing treatment for hypertension since 2012 are new, they do not raise a reasonable possibility of substantiating the claim as they are cumulative of his earlier claims for service connection and the earlier reports of hypertension which were included in the evidence at the time of the October 2012 rating decision. 38 C.F.R. § 3.156(a). Additionally, the Veteran had previously alleged that his hypertension was caused or aggravated by PTSD. As such, his statements are also cumulative of evidence of record in October 2012. Furthermore, the new evidence would not trigger the VA Secretary's duty to assist or consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. Accordingly, the standards under § 3.156(a) are not met and the Veteran's claim for service connection for hypertension as secondary to PTSD is not reopened. Id. at 110. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is remanded. The Veteran is appealing the initial rating of 20 percent for bilateral hearing loss, effective February 11, 2015. The most recent VA examination of the Veteran's hearing was conducted in December 2017. The Veteran testified at his April 2021 Board hearing that his hearing has worsened in recent years. In light of the foregoing, the Veteran should be afforded a new VA examination to assess the current severity of his bilateral hearing loss. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327; VAOPGCPREC 11-95 (1995). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) The Veteran requested TDIU in his May 2016 Notice of Disagreement concerning the initial rating for hearing loss. Therefore, the issue of entitlement to TDIU has been raised as part and parcel of the claim for a higher initial disability rating for bilateral hearing loss. Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, the issue of entitlement to a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 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 disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran had a combined disability rating of 50 percent from March 9, 2005, and with this decision's restoration of a 50 percent rating for PTSD from July 1, 2018, the Veteran has a combined disability rating of 60 percent from February 11, 2015, to the present. The Veteran does not meet the schedular criteria for entitlement to TDIU at any time. Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance and must remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). However, as Bowling remains good law, the Board cannot decide entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance. In determining whether remand is warranted, the extraschedular referral under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Veteran meets this standard as a result of the severity of the symptoms of his service-connected disabilities and his statements that he is was unable to work due to his service-connected disabilities. Consequently, a remand for referral to the Director of Compensation for consideration of TDIU on an extraschedular basis is warranted. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from April 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss. 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. 3. After completing directives 1 and 2 above, refer the claim for entitlement to a TDIU to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, pursuant to 38 C.F.R. § 4.16(b). The Director's attention is directed in particular to the reports prepared by Dr. L. (see Medical Treatment Record, October 25, 2018, and Disability Benefits Questionnaire, October 25, 2018) and to the Veteran's testimony at the April 2021 hearing before the Board concerning his employment history (see Hearing Transcript, April 30, 2021, pp. 9-14). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.