Citation Nr: 22013595 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-35 806 DATE: March 10, 2022 ORDER The reduction in the rating for service-connected posttraumatic stress disorder (PTSD) from 50 percent to 30 percent, effective March 1, 2016, was improper; restoration of the 50 percent is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT At the time of the reduction in rating of the Veteran's PTSD, the overall evidence did not reflect sustained improvement in symptomology in the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of the 50 percent disability rating for the Veteran's service-connected PTSD, effective March 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from January 2004 to April 2008. This case comes before the Board of Veterans' Appeals from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to restoration of a 50 percent rating from March 1, 2016 for posttraumatic stress disorder (PTSD) The Veteran disputes the reduction of his PTSD rating from 50 percent to 30 percent effective March 1, 2016. See August 2016 Notice of Disagreement (NOD). By way of background, the RO granted service connection for PTSD in a January 2013 rating decision with a 50 percent rating effective March 20, 2012. The RO proposed to reduce the rating from 50 percent to 30 percent based on evidence of improvement in his symptoms in a June 2015 rating decision. The reduction was finalized in a December 2015 rating decision on appeal. In August 2016, VA received the Veteran's NOD with the rating reduction. A June 2017 statement of the case (SOC) affirmed the reduction. The Veteran filed at timely substantive appeal. Where a veteran's disability rating is reduced, the Board must determine whether the reduction of the veteran's disability rating was proper and must not phrase the issue in terms of whether the veteran was entitled to an increased rating, including whether the veteran was entitled to restoration of a previous rating. See Hedgepeth v. Wilkie, 30 Vet. App. 318, 323 (2018). As this appeal stems from the rating reduction, there is no increased rating claim on appeal before the Board. The Board will proceed with determining the propriety of the reduction of the PTSD rating from 50 percent to 30 percent. The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced 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. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Reducing a rating also brings concurrent substantive requirements that must be followed. Although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have been in effect for more than five years, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown, 5 Vet. App. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, and 4.13). Ratings that have been in effect for less than five years, such as the Veteran's 50 percent rating, require improvement before an evaluation is reduced. 38 C.F.R. § 3.344(c). Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation; the rating agency must determine whether the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. The 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. Moreover, 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 at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). In any rating reduction case, it not only must be determined whether an improvement in disability occurred, but whether it actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. §§ 4.2, 4.10. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). 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 medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The December 2015 rating action reduced the Veteran's overall rating from 50 percent to 30 percent, effective March 1, 2016. Thus, the procedural safeguards of 38 C.F.R. § 3.105(e) apply. Here, the Veteran was notified of the proposed rating reduction and his rights to submit evidence or request a hearing in relation to the proposed reduction in July 2015. See also June 2015 rating decision. In addition, the rating action that reduced the rating was not issued until December 2015, more than 60 days after the notice of the proposed reduction, and the effective date of March 1, 2016, which is beyond the last day of the month in which the 60-day period from the date of notice to the beneficiary of the final rating action expired. Thus, the Board finds that the procedural safeguards have been met for the reduction of the PTSD evaluation. 38 C.F.R. § 3.105(e). As of the effective date of the reduction, the 50 percent rating had been in effect for less than five years. As the rating was in effect for less than five years, 38 C.F.R. § 3.344(c) applies, and the added protections of § 3.344(a), (b) are not applicable. A reexamination disclosing improvement in this disability will warrant a reduction in the rating. 38 C.F.R. § 3.344(c). The Veteran's PTSD is rated under Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, 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). 38 CFR § 4.130. A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. Id. The assignment of the initial 50 percent rating was based on a June 2012 VA examination. At that examination, the Veteran was diagnosed with chronic PTSD. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. It was also noted the Veteran had worked full-time at an aircraft services company for the prior two years, and he denied any significant problems at work due to his mental health problems. He was divorced in 2007 after his wife cheated on him, but he was currently in a two-year relationship with his girlfriend who was pregnant. The Veteran was capable of managing his financial affairs. He reported experiencing painful memories of traumatic events, and reportedly at one point woke up punching the headboard of his bed while sleeping. He reported nightly flashbacks and hypervigilance. He expressed concern about how his symptoms would impact his ability to parent. The examiner summarized the Veteran's level of occupational and social impairment with regards to PTSD as 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 underwent a VA examination again in March 2015. He was diagnosed with chronic PTSD, moderate severity. It was noted that the Veteran and his wife had their first child, and the baby brought him "some joy." He was employed in a flight support services company. He continued to be engaged in mental health treatment at the Brick Township Clinic. His symptoms were noted to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect. The examiner summarized the Veteran's level of occupational and social impairment regarding PTSD as 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's VA and private medical records show he first sought mental health treatment in 2008. VA medical records from 2012 through around 2019 consistently noted the Veteran's PTSD as stable. Further, he was consistently noted to be awake, alert and oriented, cooperative with good eye contact and goal directed. He also consistently denied suicidal and homicidal ideation or any auditory or visual hallucinations. VA medical records from March 2017 indicate the Veteran began tapering off his medications. He was advised by his physician that this might be a factor as to why he was irritable, but the Veteran stated he did not want to be on the medication because he was worried about long-term side effects. He was going to continue therapy in order to address his chronic PTSD symptoms, which included irritability and insomnia, hypervigilance, intrusive memories, and survivor's guilt. He was going to school but had a difficult time readjusting to civilian life as a result of his PTSD symptoms. He reported being irritable and did not feel like he had improved in the past seven years with his medication management. The treatment provider ultimately noted that the Veteran was stable and wanted to discontinue his medication, but he knew he could return if he ever changed his mind about being on the medication. VA medical records from April 2017 further note the Veteran still very much experienced himself as having PTSD. He had frustrations with civilian life and missed the military. However, he was noted to have direction, which was helped by his contact with peers and his family life. He was managing what was stated to have been a chronic condition in a productive way. It was stated that he did not find medications helpful, and while he had given them a lengthy trial he had stopped. He did not want to have another appointment at the present time, but he understood he could make another appointment when he felt. In a June 2017 SOC, the RO supported the reduction by arguing that the Veteran had removed himself from medications for mental disorders, was working full time while pursuing higher education, and was raising his daughter successfully with his wife and had no social barriers or significant stress. They further noted the social worker and doctor agreed and supported his decision insofar as properly treating his mental condition meant allowing him to dictate how and when he was treated, as his condition was well under control. It was noted the Veteran still reported experiencing intrusive thoughts, occasional anxiety, and occasional nightmares, but was overall functioning quite well. The RO stated the Veteran himself indicated he did not feel the need for regular treatment for his PTSD, as he recently indicated he wished to be seen on an as needed basis at his most recent examination. July 2017 VA medical records note the Veteran restarted his medication to include for his depression. He reported having difficulty with depression and mood and negative thoughts, as well as periods of hypervigilance where he had to check the perimeter of his house five times at night. He also had episodes where he lost time and had flashbacks of the service and had irritability. In August 2017, it was noted the Veteran was experiencing triggering and intrusive thoughts. He was taking medication and would remain on them even though he did not know how much they were doing for him. He also was going back on medication for irritability and anxiety. According to January 2018 records, the Veteran reported sleep issues due to PTSD for the past 10 years, and November 2018 records indicate PTSD was likely the primary cause of his insomnia. November 2019 VA records note the Veteran and his wife were getting divorced; he was currently dating and focused on his daughter whom he helped take care of. A February 2020 note from a VA psychologist, Dr. J.S., reported he had been seeing the Veteran since 2008, and more frequently in the past year plus. Dr. J.S. noted the Veteran's wife had recently divorced him, so he was more separated from his daughter. The wife reportedly separated from him seven months prior because she got sick of his intolerance for civilian life and what he saw as unprofessionalism, complaints about his back and not sleeping. He was noted to have a pervasive sense of survivor's guilt and struggled with a job where he saw a failure of supervision and perceived his coworkers as highly negative and unprofessional. Dr. J.S. concluded by saying the Veteran had severe PTSD. After review of the evidence, the Board finds that the reduction was not proper as the RO did not address whether there was an actual improvement in the ability to function under the ordinary conditions of life and work. Rather, the decision merely noted that the Veteran was receiving a reduced evaluation because his symptoms more closely adhered to the criteria for a 30 percent evaluation. However, the Board finds that the records relied on for the reduction do not reflect an actual change in the ability to function under the ordinary conditions of life and work. The reduction decision analyzed the issue of whether a reduction was warranted in the same manner as a claim for an increased rating; that is, the decision indicated that a reduction was warranted based on findings that the Veteran did not exhibit certain symptoms. This determination, however, does not address whether the evidence showed an actual improvement in the Veteran's ability to function. The evidence does not show this to be the case. The March 2015 VA examination which formed the basis of the of the reduction reflected similar symptomatology as the original November 2012 VA examination. In particular, both examinations noted symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment. They each also indicated symptoms of disturbances of motivation and mood or flattened affect, respectively. Notably, the March 2015 examination further did not indicate that these symptoms had decreased in severity. In this regard, the Board highlights that both VA examinations indicated the Veteran's PTSD resulted in 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 record also shows the Veteran continued to struggle with feelings of survivors' guilt, hypervigilance, insomnia, irritability, and experiencing intrusive thoughts which notably did not appear to have reduced in severity according to VA records throughout 2017 as well as the February 2020 note from the VA psychologist. To the extent the RO, in their June 2017 SOC, cited to evidence of self-removal from medication, that he was working full-time and going to school and supporting his wife and child, and did not wish to continue treatment in April 2017 as he felt his condition was managed in a productive way, the Board finds this to be unpersuasive. Notably, these represent consideration of evidence after the proposed reduction. Additionally, to the extent they are relied upon, the Board highlights that, since the SOC, the record reveals the Veteran and his wife are now divorced, and he therefore sees less of his child. Additionally, he resumed his medication as soon as July 2017 due to issues with irritability and depression, and he also returned to counseling. Dr. J.S. reported in February 2020 that the Veteran had "severe" PTSD, that he had seen the Veteran more frequently in the past year, and did not suggest there was any improvement since he began seeing him in 2008. In short, the evidence does not establish sustained improvement in the Veteran's service-connected PTSD which has actually led to an improvement in his ability to function under the ordinary conditions of life and work. The Veteran does not bear the burden of demonstrating entitlement to retention of the higher evaluation. Brown v. Brown, 5 Vet. App. 413, 420 (1993). The burden of proof is on VA to establish that a reduction is warranted by the weight of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). (Continued on the next page) The reduction of the Veteran's evaluation from 50 percent to 30 percent, effective March 1, 2016, was not proper. Therefore, the requirements for restoration have been met. See 38 C.F.R. § 3.344. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Stuedemann, A. 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.