Case 22071961

KEITH W. ALLEN · 2022 · Case ID: 22071961

MIXED

Summary

The veteran, who served from March 2001 to March 2004, appealed the denial of service connection for myopia and traumatic brain injury (TBI), as well as the reduction of his PTSD rating. During a June 2022 hearing, the veteran withdrew his claims for myopia and TBI, leading to their dismissal. The Board found the reduction of the PTSD rating from 70% to 50% in January 2018 to be unwarranted. The veteran's PTSD symptoms, including worsening anxiety, blackouts, intrusive thoughts, paranoia, memory issues, and work-related difficulties, were consistent with the 70% rating criteria. Medical evidence from treating physicians and a VA examination supported significant occupational and social impairment, leading the Board to restore the 70% rating effective November 27, 2017. The claim for service connection for a low back condition was reopened due to new and material evidence, specifically the veteran's testimony that his MOS as a cannon crewmember, involving heavy ammunition lifting, caused his pain. This claim was remanded to the Regional Office for a VA examination to determine the nature and etiology of the low back condition, particularly its service relation and potential functional impairment.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

13-34 355

Full Decision Text

Citation Nr: 22071961
Decision Date: 12/29/22 Archive Date: 12/29/22

DOCKET NO. 13-34 355
DATE: December 29, 2022

ORDER

Entitlement to service connection for myopia (claimed as eye issues secondary to service-connected migraines) is dismissed.

Entitlement to service connection for a traumatic brain injury (TBI) is dismissed.

Since there is new and material evidence, the claim of entitlement to service connection for a low back condition is reopened; to this extent only, the appeal of this claim is granted.

Entitlement to restoration of a 70 percent disability rating for service-connected posttraumatic stress disorder (PTSD) as of November 27, 2017, is granted, subject to the statues and regulations governing the payment of compensation.

REMANDED

Entitlement to service connection for a low back condition is remanded.

FINDINGS OF FACT

1. During his June 2022 hearing before this Board, so prior to the promulgation of a decision in this appeal, the Veteran withdrew his claims for service connection for myopia and a TBI.

2. The Veteran did not appeal a March 2010 rating decision earlier considering and denying his claim of entitlement to service connection for a low back condition.

3. But additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is not cumulative or redundant of the evidence of record at the time of that prior final and binding denial of this claim and raises a reasonable possibility of substantiating it.

4. The reduction of the disability evaluation for PTSD, from 70 to 50 percent as of November 27, 2017, was improper since the evidence did not show overall improvement that would be maintained under the ordinary conditions of life.

CONCLUSIONS OF LAW

1. The criteria are met for withdrawal of the appeal of the claims for service connection for myopia and a TBI. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The March 2010 rating decision earlier considering and denying the claim for service connection for a low back condition is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.201, 20.1103 (2018).

3. But there is new and material evidence since that decision to reopen this claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

4. The criteria are met for restoration of the 70 percent rating for the PTSD effective November 27, 2017, the date this rating was reduced. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.130, Diagnostic Code (DC/Code) 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 2001 to March 2004. He testified in support of these claims during a June 2022 hearing before the undersigned Veterans Law Judge of this Board. A transcript of the proceeding is of record.

Additional claims for service connection for a bilateral (right and left) hand condition, obstructive sleep apnea (OSA), and bilateral hearing loss, as well as for higher ratings for migraines, a left shoulder strain associated with degenerative joint disease (DJD), and right shoulder scars were also addressed during the June 2022 hearing. However, these other claims are part of a separate appeal stream under the Appeals Modernization Act (AMA). See September 2019, November 2020, and January 2021 VA Form 10182s, Decision Review Request: Board Appeal (i.e., AMA Notice of Disagreements (NODs)). Therefore, these other claims are not being addressed in this legacy decision and, instead, will be addressed in a separate decision of this Board.

Withdrawn Claims

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be by the appellant or authorized representative. 38 C.F.R. § 20.204; Anderson v. Brown, 9 Vet. App. 542 (1996). Withdrawal of a claim is only effective
these other claims are not being addressed in this legacy decision and, instead, will be addressed in a separate decision of this Board.

Withdrawn Claims

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be by the appellant or authorized representative. 38 C.F.R. § 20.204; Anderson v. Brown, 9 Vet. App. 542 (1996). Withdrawal of a claim is only effective when the withdrawal is explicit, unambiguous, and done with full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Hanson v. Brown, 9 Vet. App. 29 (1996). A withdrawal is effective upon receipt of the request. 38 C.F.R. § 20.204(b)(3).

Here, during the June 2022 hearing before this Board, the Veteran and his attorney indicated they are no longer appealing the claims for service connection for myopia and a TBI. Regarding the myopia, it is a type of refractive error of the eye.

Congenital or developmental defects, including refractive errors of the eyes, are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9.

That said, although service connection cannot be granted for refractive errors on a direct basis, service connection instead may be granted for this type of disability on a secondary basis due to aggravation of the constitutional or developmental defect by superimposed disease or injury incurred during service such that there is resultant additional disability. See VAOPGCPREC 82-90 (July 18, 1990).

Here, though, their statement of intention to withdraw the appeal of this claim and the one for a TBI satisfies the requirements for their withdrawal. Although the Court has distinguished written withdrawals from those, instead, done on the record orally during a hearing, here, the record shows the Veteran decided to withdraw the appeal of these claims after discussion with his attorney, and the request to withdraw the appeal of these claims is "explicit, unambiguous, and done with a full understanding of the consequences of such action." DeLisio, 25 Vet. App. at 57; see also Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Thus, as he has withdrawn his appeal of these claims, there remain no allegations of error of fact or law for appellate consideration concerning them. Accordingly, the Board does not have jurisdiction over these claims and, consequently, they are summarily dismissed.

New and Material Evidence

1. Since there is new and material evidence, the claim of entitlement to service connection for a low back condition is reopened

Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, according to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim that has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id.

In determining whether evidence is "new and material," the credibility of the new evidence must be presumed unless inherently incredible (patently false or untrue) or beyond the competence of the person making the assertion. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118.

Regardless of the local regional office's (RO's) determination of whether new and material evidence has been received, the Board must address this issue preliminarily, so in the first instance, because this initial determination affects the Board's jurisdiction to reach the underlying claim to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the claim and readjudicate it in light of all the evidence. Justus, 3 Vet. App. at 512. But once the claim is reopened, the presumption of credibility regarding this evidence no longer applies. Id., at 513.

If, on the other hand, the Board determines there is not the required new and material evidence to reopen the claim, that is where the analysis ends because further consideration of the claim is neither required nor permitted. See Barnett at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996).

Turning now to this case at hand, the Board finds that the required new and material evidence has been submitted since the last final and binding denial of the claim to permit reopening it. 38 C.F.R. § 3.156(a).

The Veteran's claim for service connection for a low back condition was previously denied in a March 2010 rating decision because the evidence then of record did not show the condition was incurred in or caused by his military service. Yet he testified during his June 2022 Board hearing that he believes this condition was caused by lifting thousands of rounds of ammunitions off trucks as part of his military occupational specialty (MOS) of cannon crewmember.

This additional evidence is new and material to the claim since not before the RO, i.e., the Agency of Original Jurisdiction (AOJ), when it previously considered and denied the claim, and this evidence is not cumulative or redundant of the evidence then of record. This additional evidence also raises a reasonable possibility of substantiating the claim since, as mentioned, the Court has held that the law should be interpreted to enable reopening of a claim, rather than precluding it. See Shade, 24 Vet. App. at 117. Therefore, in this sense this evidence also is material. Accordingly, the claim for service connection for a low back condition is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

The claim requires further development, however, before being readjudicated on its underlying merits, meaning on a de novo basis, so the Board is remanding it (sending it back) to the RO (AOJ).

Reduction in Rating

1. Restoration of a 70 percent disability rating for service-connected PTSD as of November 27, 2017

The reduction in rating for the service-connected PTSD from 70 to 50 percent, as of November 27, 2017, was unwarranted

Prior to the rating reduction at issue, the Veteran had had a 70 percent rating for his PTSD effectively since December 30, 2014. The RO's January 2018 rating decision reduced the rating for the PTSD to 50 percent as of November 27, 2017. The Veteran contends that the rating reduction was unwarranted and, therefore, is requesting reinstatement of the prior 70 percent rating as of the date it was reduced. The Board finds that restoration of the prior 70 percent rating is warranted.

The Veteran's service-connected PTSD is rated under the General Rating Formula for Mental
the service-connected PTSD from 70 to 50 percent, as of November 27, 2017, was unwarranted

The Veteran's service-connected PTSD is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411.

Under this General Rating Formula for Mental Disorders, 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-term 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.

A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affection 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); inability to establish and maintain effective relationships. Id.

The maximum 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal person hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. When a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

According to 38 C.F.R. § 3.344(a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993).

Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (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 considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). See also Brown, 5 Vet. App. at 413; Kitchens, 7 Vet. App. at 320.

Pursuant to 38 C.F.R. § 3.105(e), where a reduction in the rating of a service-connected disability 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. The beneficiary will be notified at his 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 payment should be continued at the present level. Final rating action will reduce or discontinue the compensation 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. However, the due process protections of 38 C.F.R. § 3.105(e) do not apply in this case because the January 2018 rating decision reducing the rating at issue did not result in an overall reduction of compensation payments, meaning that the Veteran's total combined disability rating remained at 80 percent regardless of this reduction. Moreover, the 70 percent rating had been in effect for less than 5 years, only from December 30, 2014, to November 27, 2017.

The Board, therefore, next turns to considering whether the reduction in rating was warranted irrespective of those circumstances because in any event it must be shown the PTSD had improved to, in turn, justify lessening the rating for it.

Rating agencies will handle cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability ratings consistent with the laws and VA regulations governing disability compensation. To this end, 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 that are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced based on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, 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).

To reiterate, these considerations apply to ratings that have continued for long periods at the same level (again, meaning for five years or more) but do not apply to disabilities that have not become stabilized and are likely to improve. Therefore, for un-stabilized ratings for disabilities likely to improve, reexaminations disclosing improvement will warrant a reduction in rating. 38 C.F.R. § 3.344(c).

Here, the Veteran was granted a 70 percent evaluation for his service-connected PTSD effective December 30, 2014. The reduction of his evaluation to 50 percent was made effective November 27, 2017. Therefore, his 70 percent evaluation was not in effect for more than five years, and the greater protections for benefits in effect for longer than five years are inapplicable in this case. See 38 C.F.R. § 3.344(c).

Nevertheless, the evidence did not show the required overall improvement in the Veteran's PTSD that would be maintained under the ordinary conditions of life, so as to in turn have warranted the reduction.

The Veteran was awarded a 70 percent rating in a March 2015 rating decision, retroactively effective from December 30, 2014, based on the date of receipt of his claim for benefits. In November 2017, the RO reassessed his condition during a VA compensation examination and then, based on the results, reduced his rating from 70 to 50 percent, which as mentioned eventually was effectuated in a January 2018 rating decision.

But, after comprehensively reviewing the evidence of record, the Board finds that the reduction was improper. The RO (AOJ) made no specific findings with regards to any of the provisions of 38 C.F.R. § 3.344, including in terms of whether there was the type of improvement that would be maintained in the ordinary conditions of work and life. A showing of improvement and that it will be
2014, based on the date of receipt of his claim for benefits. In November 2017, the RO reassessed his condition during a VA compensation examination and then, based on the results, reduced his rating from 70 to 50 percent, which as mentioned eventually was effectuated in a January 2018 rating decision.

But, after comprehensively reviewing the evidence of record, the Board finds that the reduction was improper. The RO (AOJ) made no specific findings with regards to any of the provisions of 38 C.F.R. § 3.344, including in terms of whether there was the type of improvement that would be maintained in the ordinary conditions of work and life. A showing of improvement and that it will be maintained are required even in cases, as here, which do not involve ratings that were in effect for 5 years or more.

According to the medical evidence in this case, it is clear the RO (AOJ) failed to address the fact that the Veteran suffered from symptoms commensurate with an evaluation of PTSD at the 70-percent level. Mental health treatment records from May 2017 indicate that he desperately sought therapy for his worsening PTSD, describing his condition as unbearable and intolerable. During a September 2017 VA mental health appointment, he reported experiencing "black-outs," during which he would become unresponsive and unable to remember anything following an incident. At that time, he also endorsed constant intrusive thoughts and paranoia, in turn causing him to install floodlights around his house to help him guard it at night, also difficulties with long-term memory and speech, fluctuating moods, and chronic sleep impairment. As well, he reported having work-related disciplinary actions owing to difficulty coping with work-related stress. Notably, in the report of the November 2017 VA examination, the examiner noted that the Veteran endorsed auditory hallucinations, a symptom that is specifically listed under the even higher, 100 percent, rating criteria pursuant to DC 9411.

In further support of his claim, the Veteran submitted the report of a mental status evaluation by Dr. J.A., who assessed the PTSD as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). Moreover, this evaluating clinician added the Veteran has significant cognitive problems notably, his wife must remind him to shower, he requires maps and a GPS to get to work, experiences blackouts, occasionally has bowel incontinence, loses track of the content of television programs, and forgets names, addresses, and phone numbers. Dr. J.A. concluded the Veteran presents a very complex picture of a mixture of neurological, emotional, and cognitive dysfunction and that his wife and co-workers are providing him custodial care to maintain him in his marriage and his job. If not for this, he would likely be helpless.

As such, the Board finds that the Veteran's personal narrative demonstrates no significant improvement in his PTSD. Significantly, these evaluation and treatment records mentioned do not show improvement warranting a reduction in rating.

Moreover, precedent cases have repeatedly pointed out that the disability rating is symptom driven, also based on the effects of the symptoms on the Veteran's occupational and social functioning, not instead reliant exclusively on the criteria specifically listed in the Rating Schedule for a certain rating. See, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Accordingly, the Board finds that the Veteran's PTSD rating reduction was not warranted because the RO (AOJ) did not make the appropriate findings on which a reduction in evaluation could be sustained or justified. Consequently, restoration of the prior 70 percent rating for the service-connected PTSD as of November 27, 2017 (the date the rating was reduced) is warranted. Thus, this appeal is granted.

REASONS FOR REMAND

1. Entitlement to service connection for a low back condition is remanded.

The Veteran has not been afforded a VA examination in response to this claim for service connection for a low back condition. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

The Veteran reports experiencing chronic pain in his lower back and resultantly
, 2017 (the date the rating was reduced) is warranted. Thus, this appeal is granted.

REASONS FOR REMAND

1. Entitlement to service connection for a low back condition is remanded.

The Veteran reports experiencing chronic pain in his lower back and resultantly receiving physical therapy, injections, and prescribed medications. While the evidence of record is unclear as to whether there also is consequent functional impairment of his earning capacity, even absent an underlying diagnosis explaining his pain and other symptoms, the Board finds there is sufficient evidence nonetheless to warrant providing him a VA examination concerning this claim. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018).

Accordingly, this claim is REMANDED for the following action:

Provide the Veteran a VA examination to assist in determining the nature and etiology of his claimed low back condition particularly in terms of whether related or attributable to his military service. To assist, a copy of this decision and remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to this claim.

Based on review of the Veteran's medical records, his lay statements regarding the development and treatment of his low back condition, and consideration of all other relevant evidence in the claims file, including a complete copy of this decision and remand, the examiner is asked to first address whether Veteran:

a) has an underlying diagnosis to account for or explain his complaints of chronic low back pain. But, even if he does not, the examiner must consider whether the chronic pain is causing functional impairment of earning capacity that, in turn, would permit VA adjudicators to conclude the Veteran has a ratable low back disability, even absent an underlying diagnosis. See Saunders v. Wilkie, 885 F.3d. 1356 (Fed. Cir. 2018).

The examiner is then asked to comment on:

b) the source or cause of the Veteran's low back disability, including especially in terms of whether directly related or attributable to his military service, particularly from working as a cannon crewmember (causing "wear and tear") since that involved lifting thousands of rounds of ammunitions on a regular basis.

The mere absence of evidence of treatment for a low back condition in the Veteran's service treatment records (STRs) cannot, at least alone, be sufficient reason or rationale for providing an unfavorable opinion disassociating this claimed condition from his service. It is acceptable, however, to consider this as one of other factors, provided there also is explanation of why it is reasonable to have expectation in the STRs of this claimed disability or sooner than when shown.

The examiner is also advised that the Veteran is competent to report his symptoms and history, and his reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide reason for doing so.

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Mukherjee, C.

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.

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