Citation Nr: A25000519 Decision Date: 01/03/25 Archive Date: 01/03/25 DOCKET NO. 230112-314462 DATE: January 3, 2025 ORDER Restoration of the 100 percent rating for post-traumatic stress disorder (PTSD) with major depressive disorder and bruxism, effective May 1, 2022, is granted. FINDING OF FACT The reduction of the disability rating for service-connected PTSD from 100 percent to 70 percent, effective May 1, 2022, was not proper as the evidence did not reflect improvement in the Veteran's disability that would be reasonably maintained under the ordinary conditions of life. CONCLUSION OF LAW The criteria for restoration of a 100 percent disability rating for PTSD, effective May 1, 2022, are met. 38 U.S.C. §§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.1.30, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from August 1997 to January 2021. In a November 2021 rating decision, the Agency of Original Jurisdiction (AOJ) proposed reducing the evaluation for PTSD. A February 2022 rating decision effectuated the reduction from 100 percent to 70 percent for the service connected PTSD, effective May 1, 2022. In March 2022 the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of the February 2022 decision. In April 2022, the AOJ issued the HLR decision on appeal, which found that the reduction from 100 percent to 70 percent for PTSD was appropriate. The Veteran timely appealed the April 2022 rating decision to the Board of Veterans' Appeals (Board) and requested Direct Review of the evidence considered by the AOJ. See VA For 10182, received January 2023. Accordingly, the Board's current review is limited to the evidence of record at the time of the AOJ's February 2022 rating decision that was subject to higher level review. Restoration of the 100 percent rating for post-traumatic stress disorder (PTSD) with major depressive disorder and bruxism, effective May 1, 2022 The Veteran contends that her disability has not materially improved since the last time her condition was evaluated as 100 percent disabling in the February 2021 rating decision. This rating decision was issued after a July 2020 VA examination initiated by the Department of Defense Integrated Disability Evaluation System (IDES). In November 2021, the Veteran was notified that VA intended to reduce her 100 percent disability rating for service-connected PTSD to 70 percent. The reduction process was initiated in a February 2022 rating decision, which noted improvement in the Veteran's disability. Neither the November 2021 proposed rating reduction, nor the February 2022 rating decision effectuating the reduction provided any explanation as to how the Veteran's disability improved, beyond a recitation of the symptoms listed in the General Rating Formula for Mental Disorders under the 100 percent rating criteria and the 70 percent rating criteria. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. VA's 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. In VA's Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a disability may require re-ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. The 100 percent rating for PTSD had been in effect since January 29, 2021. The reduction of her rating to 70 percent was effectuated on May 1, 2022, a period of less than 5 years. When a disability rating has been in effect for at least 5 years, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). Prior to reducing a veteran's disability rating, however, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions 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. Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991)). In Brown v. Brown, 5 Vet. App. 413 (1993), the Court of Appeals for Veterans Claims (Court), held that there are general substantive requirements that apply to all rating reductions, notwithstanding how many years the rating has been in effect. Specifically, the Court requires that adjudicators must: (1) review the entire record of examinations and medical and industrial history to ascertain whether the recent examination(s) on which the reduction was based were full and complete; (2) decline to use examinations which are less full and complete than those on which payments were authorized or continued; (3) not reduce an evaluation except in cases where all the evidence clearly warrants a finding of material improvement. In addition, where material improvement in the physical condition is clearly shown, the rating agency must consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of daily life. Brown, at 419-20, see also Schafrath, 1 Vet. App. 594 ([t]hese requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition). See also 38 C.F.R. § 3.344(c). Rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for disease subject to temporary or episodic improvement, such as epilepsy, asthma, ulcers, and many skin diseases, will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. In considering the propriety of a reduction, the Board must focus on the evidence available to the AOJ 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. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). After a review of all the relevant evidence of record, the Board finds that the record fails to establish that, at the time her rating reduction was effectuated in February 2022, the Veteran had had a material improvement in her disability since the February 2021 rating decision, which awarded her 100 percent disability rating. Therefore, the Board concludes that the reduction is improper and that a restoration of the 100 percent disability rating for service-connected PTSD from May 1, 2022, is warranted. 38 C.F.R. § 3.344. The Veteran's 100 percent disability rating for PTSD was granted in a February 2021 rating decision based the findings of a July 2020 VA examination. At the time of that examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, impaired judgement, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran denied a history of suicide attempts or inpatient mental health treatment but acknowledged she went to the Emergency Room (due to passive suicidal ideation (SI)) the previous year, in November. She denied active SI but struggles with passive SI and thoughts of feeling she is a burden to her family. The examiner opined that the Veteran's symptoms were consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. See July 2020 C&P Examination. The reduction in rating was based on the findings of a September 2021 VA examination. At that examination, the Veteran's PTSD was confirmed along with her diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), combined type. The examiner noted that the symptoms of each were indistinguishable from each other. The Veteran reported experiencing current mental health issues which include significant symptoms of anxiety and depression, feelings of detachment from others, low mood and motivation, sleep disturbances, irritability and angry outbursts, changes in appetite, and social withdrawal. The examiner noted the Veteran experienced symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner also opined that the Veteran's symptoms were consistent with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. See September 2021 C&P Examination. In her January 2023 NOD, the Veteran reported no improvement in her symptoms and ability to function under the ordinary conditions of daily life. She described significant impairments brought about by her service-connected PTSD which had been with her for many years. Considering this, the Board finds that the evidence indicates that the Veteran had no material improvement in her service-connected PTSD between the February 2021 rating decision and the effectuation of the reduction in February 2022. In making this finding, the Board has afforded probative weight to the September 2021 VA examination, which the AOJ relied upon in effectuating the reduction. However, the Board notes the examination did not indicate improvement in the Veteran's symptoms at all, much less an improvement in her ability to function under the ordinary conditions of daily living. In fact, the symptoms observed in the July 2020 VA examination are essentially the same as those observed in the September 2021 examination, which indicates no improvement of symptoms and almost no chance of any significant improvements in the short term. The Board also notes that the AOJ's proposed rating reduction and the rating decision which effectuated the reduction fail to address how the Veteran's service-connected disability had improved, and whether that improvement was likely to be maintained under the ordinary conditions of life. The AOJ merely listed the symptoms under the 70 and 100 percent rating criteria, with no discussion of the September 2021 medical opinion, what symptoms improved, and how the Veteran would be able to maintain any improvements in daily life. As such, the Board finds that the AOJ's reduction of the Veteran's rating did not clearly show an improvement in the Veteran's ability to function under the ordinary circumstances of life and work. Since the burden is on VA to show that a rating reduction is warranted, for the reasons discussed above, the Board finds that VA failed to meet this burden. Therefore, the Board concludes that a restoration of the 100 percent disability rating for service-connected PTSD must be restored, effective May 1, 2022. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992) (holding that where VA has reduced a veteran's disability rating without observing the applicable law and regulations, such a rating is void ab initio and restoration is required). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rogers, Nyella M. (she/her/hers) 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.