Citation Nr: A25007202 Decision Date: 01/28/25 Archive Date: 01/28/25 DOCKET NO. 230322-332885 DATE: January 28, 2025 ORDER Restoration of a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) since May 1, 2023 is denied. FINDING OF FACT At the time of the February 2023 rating decision, the Veteran's service-connected PTSD with MDD demonstrated improvement, including in her ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 70 percent rating for PTSD with MDD since May 1, 2023 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from February 1994 to June 1997. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2023 decision of the Agency of Original Jurisdiction (AOJ) that, in pertinent part, reduced the rating for service-connected PTSD with MDD from 70 to 50 percent, effective May 1, 2023. The Veteran only appealed the decrease in her benefits for PTSD from 70 percent to 50 percent. In the March 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Rating Reduction Governing law provides that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. Where a reduction in an 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 must be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e); see also Breland v. McDonough, 22 F.4th 1347, 1352 (Fed. Cir. 2022). VA must also notify the appellant that he or she has 60 days to present additional evidence showing that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). After completing the predetermination procedures, VA must send the appellant written notice of the final action, which must set forth the reasons for the action and the evidence upon which the action is based. Where a reduction of benefits is found warranted and the proposal was made under the provisions of 38 C.F.R. § 3.105(e), the effective date of the final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(i)(2). 1. The reduction in the rating for PTSD with MDD from 70 percent to 50 percent, effective May 1, 2023, was proper; the appeal is denied. In the February 2023 rating decision on appeal, the AOJ reduced the rating for service-connected PTSD with MDD from 70 to 50 percent, effective May 1, 2023. The Veteran asserts that the rating reduction was improper, as VA failed to find actual improvement in her ability to function under the ordinary conditions of life and work, relied on the absence of evidence rather than finding substantive negative evidence, and failed to consider all findings of the November 2022 VA examination report. See June 2023 representative's brief. The Veteran's representative also asserts that the November 2022 VA examination shows that she still exhibits psychiatric manifestations that first appear at the 70 percent criteria, to include impaired impulse control, inability to establish and maintain social relationships, and near-continuous depression that affects her ability to function appropriately and effectively. Historically, in an October 2022 rating decision, the AOJ granted service connection and a 70 percent rating for PTSD, effective November 23, 2020, based on a May 2022 VA examination that diagnosed PTSD and MDD (recurrent episode, severe). The Veteran was notified of this decision by a letter dated on October 7, 2022. Less than a week later, in October 2022, the Veteran filed a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), claiming service connection for anxiety and depression as secondary to service-connected PTSD. In a subsequent October 2022 telephone call, she clarified that she meant for her claim to be a claim for an increased rating for PTSD. Following a November 2022 VA compensation examination that diagnosed PTSD and MDD (recurrent episode, moderate), a November 2022 rating decision recharacterized the service-connected psychiatric disorder as PTSD with MDD and proposed to reduce the rating for this disability from 70 percent disabling to 50 percent disabling. The November 2022 rating decision set forth all material facts and reasons for the proposed reduction, including the findings at the November 2022 VA PTSD examination. By a letter dated on November 15, 2022, the Veteran and her representative were notified of the proposed rating reduction, and were also informed of her rights to challenge the proposed reduction and her right to a hearing. The Veteran did not request a predetermination hearing regarding the issue. In the February 2023 rating decision on appeal, the AOJ reduced the rating for service-connected PTSD with MDD from 70 to 50 percent, effective May 1, 2023, the first day of the month following the 60-day period after notification of this decision, and the Veteran was informed of the decision by a letter dated in February 2023. The reduction was made effective no sooner than permitted by current law and regulations. The Veteran has not asserted that the procedural provisions specific to rating reductions were not followed, and the record does not reflect otherwise. Accordingly, the Board finds that the notice and due process requirements of 38 C.F.R. § 3.105(e) have been met. The Board must now consider whether the reduction in rating was proper. The Veteran's 70 percent rating for PTSD with MDD was in effect from November 23, 2020 to May 1, 2023, a period of less than five years. Therefore, the specific protocols for reducing protected ratings are inapplicable to this claim. See 38 C.F.R. § 3.344(a), (b). Reexaminations demonstrating improvement in this disability will warrant reduction in rating. 38 C.F.R. § 3.344(c). However, VA must determine whether the evidence reflects an actual change in the disability based upon review of the entire recorded history of the condition, whether the examination reports reflecting such change are based upon thorough examinations, and whether any improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Stern v. McDonough, 34 Vet. App. 51 (2021) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); Murphy v. Shinseki, 26 Vet. App. 510, 516-17 (2014); see also Faust v. West, 13 Vet. App. 342, 349 (2000) (summarizing the requirements that VA must follow in all reduction cases "regardless of the rating level or the length of time that the rating has been in effect"). Under the General Formula for Mental Disorders (General Formula), VA 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. 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 C.F.R. § 4.130, Diagnostic Codes 9411 (PTSD), 9434 (MDD). 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. Id. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id. Based upon review of the entire recorded history of the condition, the Board finds that the evidence of record persuasively supports the reduction of the rating for the Veteran's PTSD with MDD from 70 percent to 50 percent, effective May 1, 2023, under Diagnostic Code 9411, as the November 2022 reexamination showed improvement in the Veteran's service-connected psychiatric disability, including an improvement in her ability to function under the ordinary conditions of life and work. Evidence of record at the time of the October 2022 rating decision includes a May 2022 VA compensation examination, and extensive VA outpatient treatment records dated from October 2000. VA outpatient treatment records dated from April 2013 to February 2022 reflect that the Veteran worked as an office manager at a dental office until she was fired in early February 2022, and began working as a real estate agent in May 2021. A July 2020 VA mental health note shows that the Veteran was recently arrested for domestic violence toward her husband (throwing things at him during an argument), and reported a history of severe mood swings and an inability to control her emotions. In August 2020, a VA psychologist diagnosed borderline personality disorder, generalized anxiety disorder, and rule out depressive disorder. She was referred for individual and group therapy. In October 2020, the Veteran reported that she was considering finding a new job in real estate. In December 2020, she reported that she was very stressed, as she was studying for a real estate examination, working, taking care of her son's medical needs, and trying to work on communicating better in her marriage. Later that month, she reported that she worked part-time as a dental office manager and planned to take a real estate examination soon in order to change careers. In March 2021, she reported that she was optimistic and had recently passed her national real estate licensing examination. In May 2021, she reported that her real estate career was going really well, and discontinued group therapy because she was working two jobs. In June 2021, she reported that she was going through a marital separation, bought a house and changed careers, and her life was much better. VA outpatient treatment records dated in early February 2022 reflect that the Veteran reported that she was fired from her job that day, cried all the time, and had not been herself. She said she had a few breakdowns at her job and it was affecting her ability to work. In March 2022, she reported that she was working with a new real estate agency and it was great. She reported reduced anxiety and improved mood since starting her new job. The May 20, 2022 VA PTSD compensation examination and the Veteran's reported symptoms at that examination showed that her PTSD symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. The May 2022 VA PTSD examination showed that the Veteran's PTSD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss), symptoms associated with a 50 percent rating (difficulty in understanding complex commands, impaired judgment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships), and symptoms associated with a 70 percent rating (near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, difficulty in adapting to stressful circumstances, obsessional rituals which interfere with routine activities, impaired impulse control, and inability to establish and maintain effective relationships). The Veteran's PTSD and MDD symptoms as demonstrated on May 2022 VA examination are inconsistent with the symptoms shown during VA outpatient mental health treatment both prior to and after that examination. For example, her VA mental health treatment records are entirely negative for panic attacks, near-continuous panic, and obsessional rituals. On mental status examination at the May 2022 VA examination, the Veteran was oriented to person, place, time, and task. She was open, cooperative, and honest. She cried throughout the appointment and sobbed at times. Her hygiene and grooming were adequate. She was dressed casually. Her speech had normal rate, tone, and volume, and her eye contact was appropriate. She described her mood as "anxious." Her affect was full, thought content was sad, and thought process was unimpaired. She was not observably responding to internal stimuli. She denied experiencing recent suicidal ideation. She said she had not been able to have a healthy relationship, could not follow through with projects due to lack of interest, and struggled with concentration problems, trouble remembering details, being "jumpy," blaming herself, difficulty organizing, anger problems, and high anxiety. The May 2022 VA compensation examiner diagnosed PTSD and MDD (recurrent episode, severe), and stated that her anxiety was subsumed under her PTSD diagnosis. The examiner indicated that it was not possible to distinguish the symptoms for these disorders due to significant overlap, and opined that the Veteran's PTSD produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. On VA outpatient mental status examinations from March 2021 to June 2022, the Veteran's appearance, grooming, hygiene, and behavior were consistently appropriate, and she was oriented times four. Speech, language, memory, attention, concentration, and fund of knowledge were all consistently within normal limits. She had no hallucinations, delusions, or suicidal or homicidal ideation. Thought processes were linear and associations were intact. In March 2021, her mood was good, her affect was euthymic, judgment was improving, and insight was adequate. In February 2022, her mood was low, her affect was somewhat tearful, and judgment and insight were adequate. In March 2022, her mood was euthymic, her affect was neutral, and judgment and insight were good. In April 2022, her mood was okay, her affect was consistent, and judgment and insight were adequate. In May 2022, her mood and affect were good, judgment was adequate, and with regard to insight, she had an awareness of her illness. In June 2022, her mood and affect were good, and judgment and insight were adequate. The evidence of record, including the November 2022 VA examination shows that the Veteran's PTSD symptoms have improved, more closely approximate the symptoms associated with a 50 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 50 percent rating. The November 2022 VA compensation examination shows that the Veteran's PTSD with MDD was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, and chronic sleep impairment), symptoms associated with a 50 percent rating (impaired judgment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships), and no symptoms associated with a 70 percent rating or a 100 percent rating. She also had symptoms that are not listed with a specific rating, such as recurrent, involuntary, and intrusive distressing memories of the traumatic in-service event, avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event, and problems with concentration. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, recurrent intrusive memories and efforts to avoid such memories and feelings are similar to panic attacks more than once a week, and difficulty concentrating is similar to difficulty in understanding complex commands, which are contemplated by the assigned 50 percent rating. At the November 2022 VA examination, the Veteran reported that she had been a real estate agent since April 2021 but went through a dry patch early this year. She said she sold a home in July 2022 but struggled with motivation to work ever since. She reported she found it hard to call people or socialize which was needed for her job. The Veteran reported she had been sleeping more lately for the last few months, and denied having nightmares. She reported she had a boyfriend recently but ended the relationship due to a lack of energy to be in a relationship or be around others. She noted that he was living with her, but she had asked that he move out, and the relationship, which lasted a little over a year, had ended a couple of months prior. She also reported having a hard time concentrating which made learning material for her job difficult, and reported being very forgetful. She reportedly avoided texting friends back at times due to a lack of interest in responding and left social gatherings early. In addition, the Veteran indicated that she ran up a good amount of debt, as shopping made her feel better temporarily. She said she did not know why she was sad because she did not believe she had a reason to be sad. She also reportedly continued to struggle to be around men by herself as a result of her military trauma. On mental status examination, the VA examiner stated that with regard to the Veteran's appearance and grooming, she was well-kept to include nails and makeup, she was cooperative, she had no abnormalities in psychomotor activity, her mood was dysphoric, and her affect was congruent with her mood. She denied suicidal and homicidal ideation, hallucinations, and delusions. There was no evidence of perceptual disturbance, and her thought processes and speech were linear and logical. There were no signs of a thought disorder. She was oriented times three, attention and concentration were good, and memory, judgment, and insight were fair. The November 2022 VA examiner diagnosed PTSD and MDD (recurrent episode, moderate), and opined that the Veteran's PTSD with MDD produced occupational and social impairment with reduced reliability and productivity. The examiner stated that it was not possible to differentiate the symptoms attributable to these disorders as the symptoms of each disorder and their resulting impairment overlapped. The Veteran's representative asserts that the November 2022 VA examination report shows that she still exhibits psychiatric manifestations that first appear at the 70 percent criteria, to include impaired impulse control, inability to establish and maintain social relationships, and near-continuous depression that affects her ability to function appropriately and effectively, as demonstrated by her lay statements at the November 2022 VA examination that she ran up a good amount of debt as shopping made her feel better temporarily, had a lack of energy to be in a relationship or be around others, avoided socialization, and found it hard to call people. The representative asserted that the examination showed that the Veteran had a persistent negative emotional state and her continuous depression was exhibited by her observed dysphoric mood. See June 2023 representative's brief. The Board acknowledges that the Veteran believes that her PTSD with MDD should be rated as 70 percent disabling, and she is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds that the contention by her representative that she has an inability to establish and maintain social relationships is not consistent with the Veteran's VA medical records and the findings at the November 2022 VA examination. These records show that although she has difficulty in establishing and maintaining effective work and social relationships and was divorced in February 2022 (prior to the May 2022 VA PTSD examination), she has nonetheless established new friendships and romantic relationships, maintains a relationship with two good friends who live locally and with whom she tries to get together weekly, is pretty close to her oldest son who relies on her a lot to be his support, gets along with her youngest son despite a difficult relationship, and occasionally sees and talks to him. A November 2022 VA mental health note shows that the Veteran was considering joining a work kickball league. Similarly, the Veteran's treatment records and the November 2022 VA examination show that while she has a depressed mood and disturbances of motivation and mood, she does not have near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The November 2022 examiner did not find that she has near-continuous depression affecting the ability to function independently, appropriately, and effectively, and the examination report and her VA treatment records show that she sought training and successfully changed careers and employers, and lives independently while supporting her children. In March 2022, the Veteran reported that she started working at a new real estate agency with plenty of females and reported that it was great. She reported reduced anxiety and improved mood since starting her new job. A November 2022 VA mental health note shows that the Veteran was still working as a real estate agent. The November 2022 examiner did not indicate that the Veteran has impaired impulse control (such as unprovoked irritability with periods of violence), and her VA treatment records and her reported symptoms during treatment also do not demonstrate impaired impulse control due to PTSD with MDD. The representative's assertions in this regard are inconsistent with the findings of the VA examiner and VA treatment records, and are less probative than the findings of the November 2022 VA examiner and the Veteran's mental health providers, as he is not competent to identify psychiatric symptoms or link them to her service-connected PTSD with MDD. This issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, including the November 2022 VA examination report and VA outpatient records, showing improvement under the ordinary conditions of life and work. Thus, for the period from May 1, 2023, the probative evidence demonstrates sustained improvement in the Veteran's ability to function under ordinary conditions of life and work due to her PTSD with MDD. Therefore, the reduction in the rating for the Veteran's PTSD with MDD from 70 percent to 50 percent, effective May 1, 2023 was proper, and the appeal is denied. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.L. Wasser, 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.