Citation Nr: 21042060 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-10 965 DATE: July 11, 2021 ORDER Entitlement to restoration of a 50 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted. REMANDED Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an April 2016 rating decision, the Regional Office (RO) proposed to reduce the rating assigned for the Veteran's service-connected PTSD with MDD from 50 percent to 30 percent. 2. In an August 2016 rating decision, the RO reduced the rating for PTSD with MDD from 50 percent to 30 percent, effective November 1, 2016. 3. At the time of the reduction, the Veteran's 50 percent rating had been in effect for a period of more than five years. 4. The evidence of record did not demonstrate a material improvement that would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for entitlement to a restoration of a 50 percent rating for PTSD with MDD, effective November 1, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1982 to March 1983 and from February 2003 to April 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2016 and September 2016 rating decisions of the Department of Veterans Affairs (VA) RO. The Veteran testified before the Board at a May 2021 virtual hearing; a transcript of the hearing is associated with the claims file. The Veteran contends that the reduction of the 50 percent rating for PTSD with MDD was not proper. When determining whether a reduction was proper, there are two sequential inquiries that must be addressed. First, the Board must ascertain whether the RO satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second inquiry concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial inquiry, when a reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The veteran must be notified at his latest address of record of the contemplated action and must be furnished detailed reasons. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). In this case, the RO has satisfied the procedural due process requirements for a reduction. The RO proposed to reduce the rating in an April 2016 rating decision that set forth the material facts and reasons for the proposed reduction. The Veteran was given 60 days to respond and present additional evidence. In August 2016, the RO issued a rating decision effectuating the reduction. Thus, the notice requirements for the reduction of the assigned disability rating were satisfied. See 38 C.F.R. § 3.105(e). The Board will therefore focus on the second inquiry: whether the evidence shows an improvement in the severity of the service-connected disability. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4 (Rating Schedule). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. These ratings are intended to compensate, as far as can be practicably determined, the average impairment in earning capacity resulting from such diseases and injuries incurred or aggravated during military service and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's PTSD with MDD is rated under the General Formula for Mental Disorders (General Formula). When using the General Formula to evaluate a disability, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. The Veteran was in receipt of a 50 percent rating for PTSD with MDD for a period of more than five years. Accordingly, the Board's analysis will be conducted under 38 C.F.R. § 3.344 (a) and (b). In cases where an evaluation has been in effect for a period of five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A disability rating that has been in effect for a period of five years or more may not be reduced based on only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344(a). Regulations "impose a clear requirement that VA rating reductions . . . be based upon a review of the entire history of the veteran's disability." Brown v. Brown, 5 Vet. App. 413, 420 (1993); 38 C.F.R. §§ 4.1, 4.2, 4.13. A rating reduction is proper if the evidence reflects an actual change in the disability. The examination reports reflecting such change must be based upon thorough examinations. Brown, 5 Vet. App. at 421. 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. 38 C.F.R. § 4.13. It must also be determined that any such improvement also reflects an improvement in the veteran's ability to function under ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 420. The Board has reviewed the February 2006 private psychological evaluation (received by VA in April 2006) upon which the 50 percent rating was granted. The February 2006 private psychological evaluation noted the Veteran's strained relationship with his spouse due to irritability. The evaluation also indicated that the Veteran experienced a lack of enjoyment in life ("on most days, 'I come home from work and just sit on my chair until I fall asleep.'"); a lack of patience and poor concentration at work; non-restful sleep with recurrent distressing dreams of service; feeling triggered by everyday occurrences (crowds, freeways, roadkill); feelings of detachment from others; a flattened affect; easy startling; and occasional thoughts of suicide, though he "denie[d] intent to act on these thoughts." When comparing the symptoms described in the February 2006 private psychological evaluation with the January 2014 and March 2016 VA examinations on which the reduction was based, the Board finds that the symptoms have not demonstrated sufficient improvement to warrant the 2016 reduction. The January 2014 VA examination indicated that the Veteran described himself as "depressed[ and] unmotivated." The Veteran reported distressing dreams and difficulty sleeping; flattened affect; easy startling; "[l]ow enthusiasm" ("Watches tv after work until he falls asleep in his chair"); hypervigilance; and tiredness during the day. Though the Veteran stated he generally got along with others, he was irritable with his wife, especially when she reminded him to take his medications. Non-VA treatment records indicated ongoing treatment for PTSD, managed by medication; there were instances of reactions resulting in increased symptoms, such as insomnia. His wife reported periodic moodiness. In March 2014, he reported periodic attacks of social anxiety, not rising to the level of panic attacks. An August 2015 non-VA medical record noted that the Veteran "Has managed depression/ptsd, without suicidal ideation, sleep is generally restorative, has adequate focus, interest/energy." An October 2015 non-VA medical record described the Veteran's PTSD as "stable" with "still some nightmares on occasion." The March 2016 VA examination remarked that the Veteran's "condition seemed unchanged since his [January 2014 VA examination]." The March 2016 VA examination noted symptoms of depressed mood; anxiety; chronic sleep impairment and recurrent distressing dreams; flattened affect; irritability; markedly diminished interest or participation in significant activities; and hypervigilance. The Veteran reported anger management issues, difficulty trusting others, panic attacks 1-2 times per month, and exaggerated startle, though he again stated he felt he got along with people. The Board finds that the symptoms of the Veteran's PTSD with MDD have remained basically the same since the February 2006 private psychological evaluation. There has been consistent reports of waxing and waning of symptoms, but the central complaints of anxiety, moodiness, and depression have been persistent. Thus, material improvement that will be maintained under the ordinary conditions of life has not been shown. The rating reduction for the Veteran's service-connected PTSD with MDD from 50 percent to 30 percent was accordingly not proper, and the 50 percent rating is restored. REASONS FOR REMAND Remand is necessary to obtain additional VA examinations. In his claim for TDIU, the Veteran, the Veteran attributed his inability to work to his lumbar spine disability. At the May 2021 Board hearing, the Veteran testified that his PTSD with MDD, shoulder disabilities, cervical spine disability, and right ankle disability now also contributed to his inability to work. The most recent VA examinations for the Veteran's shoulder, cervical spine, and right ankle disabilities were in January 2014. The most recent VA examination for his PTSD with MDD took place in March 2016. Because the Veteran's testimony at the Board hearing implied that these conditions had worsened and now cause unemployability, current VA examinations are needed. In addition, an August 2016 VA examination determined that the Veteran could perform "sedentary work" but did not specify the types of occupational activities that he could perform with his lumbar spine disability. Accordingly, a VA examination is necessary for the Veteran's lumbar spine disability as well. The matter is REMANDED for the following action: 1. Schedule the Veteran for examinations by appropriate clinicians regarding the current severity of his PTSD with MDD, shoulder disabilities, cervical spine disability, lumbar spine disability, and right ankle disability. The clinician should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of these disabilities on employment. The clinician should identify all limitations or functional impairment caused solely by the Veteran's PTSD with MDD, shoulder disabilities, cervical spine disability, lumbar spine disability, and right ankle disability. 2. Then, readjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.