Citation Nr: A21009918 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 191017-38067 DATE: May 27, 2021 ORDER The reduction in the disability rating for the Veteran's service-connected posttraumatic stress disorder with major depressive disorder (hereinafter "PTSD") from 100 percent to 70 percent, effective December 1, 2019, is void; restoration of the 100 percent disability rating is granted. FINDING OF FACT The September 2019 rating decision in which the RO reduced the disability rating for the Veteran's PTSD from 100 percent to 70 percent failed to consider, and to apply, the provisions of 38 C.F.R. § 3.344. CONCLUSION OF LAW The reduction in the disability rating for PTSD from 100 percent to 70 percent, effective December 1, 2019, was improper, and restoration of the prior rating is warranted. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 2000 to March 2001 and from January 2003 to March 2004. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which reduced the disability rating for the Veteran's PTSD from 100 percent to 70 percent. In October 2019, the Veteran filed a timely VA Form 10182 (Decision Review Request: Board Appeal) and requested review by the Board based on evidence submission. The Board observes that the record does not contain an Informal Hearing Presentation from the Veteran's representative. However, given the full grant of the benefit sought on appeal herein, the Board finds there is no prejudice to the Veteran in proceeding with adjudication. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Whether the reduction in the disability rating for PTSD from 100 percent to 70 percent, effective December 1, 2019, was proper In rating reductions, when VA contemplates reducing an evaluation for a veteran's service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105(e). As enumerated in 38 C.F.R. § 3.105(e), "[w]here the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons." Id. In addition, "[t]he beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level." Id. The beneficiary also will receive notification that "he or she will have an opportunity for a pre-determination hearing," 38 C.F.R. § 3.105(i), and thereafter, a "final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires." See 38 C.F.R. §§ 3.105(e); 3.500(r). In addition to satisfying the procedures outlined above, the RO must gather evidence to establish that a rating reduction is proper. In this matter, in an April 2019 letter, following an April 2019 rating decision, the Veteran was notified at his latest address of record that the RO proposed to reduce the disability rating for PTSD from 100 percent to 70 percent, which would result in a reduction of his combined disability compensation benefits and compensation payments. In the April 2019 letter, the Veteran was invited to file additional evidence in opposition to the reduction and was offered an opportunity for a hearing. In an April 2019 Statement in Support of Claim, the Veteran, through his representative, requested a personal hearing on the proposed reduction. However, in July 2019, he requested that the hearing be cancelled "in lieu of a new C&P examination." An additional VA PTSD examination was provided in August 2019. The reduction was implemented by a September 2019 rating decision, effective December 1, 2019. Based on the foregoing, the Board finds that the RO complied with the procedural safeguards regarding the notice of the proposed rating reduction and the implementation of that reduction. See 38 C.F.R. § 3.105(e). The Board will now consider the propriety of the rating reduction itself. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio (i.e., at their inception). Greyzck v. West, 12 Vet. App. 288, 292 (1999). As pertinent here, for ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. See 38 C.F.R. § 3.344(c). 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. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). Upon review, the Board finds that the RO failed to consider, and to apply, the provisions of 38 C.F.R. § 3.344 in the September 2019 rating decision effectuating the rating reduction for PTSD. Specifically, the RO did not discuss whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Notably, during the August 2019 VA PTSD examination, the Veteran reported that he had been separated from his wife for over one year and that he has two sons and one daughter. When asked about the relationship with his children, the Veteran stated, "right now we might speak once a month...they tell me they are scared of my temper." The Veteran endorsed irritability and angry outbursts, stating, "just people looking at me and talking to me...trying to understand who I am...profanity...throw stuff...couple times there has been an altercation...last one was 3 weeks ago...was at gathering downtown with associate's...people were trying to analyze me...became violent...left before the police got there...you could hear them whispering." The Veteran also stated, "I don't want to live sometimes...[I] have suicidal thoughts sometimes...[I] feel depressed most of the time..." Under the General Rating Formula for Mental Disorders, a 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as persistent danger of hurting self or others. Based on the Veteran's lay reports of symptoms during the August 2019 VA PTSD examination, and after resolution of all reasonable doubt in his favor, the Board finds that there was no actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. This is because the evidence available at the time the RO proposed reducing the disability rating demonstrates a level of impairment consistent with the previously assigned 100 percent disability rating. For these reasons, the Board finds that the RO did not properly apply the provisions of 38 C.F.R. § 3.344 in the September 2019 rating decision. As noted previously, when a RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck, 12 Vet. App. at 292. Thus, the appropriate remedy in this case is a restoration of the 100 percent disability rating for PTSD effective on the date of the reduction, December 1, 2019. See Hayes v. Brown, 9 Vet. App. 67, 73 (improper reduction reinstated effective date of reduction). The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.