Citation Nr: 21003655 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-54 830 DATE: January 22, 2021 ORDER Service connection for PTSD is granted. A 60 percent rating for bilateral hearing loss is restored, effective April 1, 2017. REMANDED The issue of entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD that is etiologically related to an in-service event. 2. At the time of the rating reduction, the evidence did not show material improvement in the Veteran's bilateral hearing loss, including under the ordinary conditions of work and life. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. 2. The criteria for restoration of a 60 percent rating for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.105(e), 3.344(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1966 to May 1970. This matter is before the Board following his appeal of March 2015, March 2016, and December 2016 rating decisions. The Board is cognizant that the Agency of Original Jurisdiction (AOJ) only certified the issue of entitlement to a TDIU as on appeal. Nevertheless, the Veteran also filed a timely notice of disagreement with the denial of service connection for PTSD, and an admittedly untimely VA form 9 addressing PTSD. He also perfected a timely appeal concerning the rating reduction for his bilateral hearing loss and, importantly, during a November 2020 Board hearing, the undersigned Veterans Law Judge took testimony on all three issues. The Board also points out that the Veteran is unrepresented. As such, notwithstanding the absence of a timely substantive appeal regarding the issue of entitlement to service connection for PTSD, the Board will assume jurisdiction over the Veteran’s PTSD and hearing loss rating reduction claims in addition to the TDIU claim, and issue a decision on the merits. See Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Service Connection for PTSD Establishing that a disability is service connected for purposes of entitlement to VA disability compensation generally requires medical or, in certain circumstances, lay evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Establishing that PTSD is service connected for purposes of entitlement to VA disability compensation requires (1) a current medical diagnosis of PTSD, (2) a medically established link between the current PTSD and the claimed in-service stressor, and (3) credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f); see Molitor v. Shulkin, 28 Vet. App. 397, 402-03 (2017). In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, clinical evidence shows that the Veteran was diagnosed with PTSD in September 2016 and January 2017, including by a VA psychiatrist, and VA treatment records dating through January 2020 confirm an ongoing PTSD diagnosis. Additionally, the clinical evidence supports that the diagnosis was based on the Veteran’s reported combat experiences in Vietnam. VA treatment notes expressly indicate a diagnosis of chronic PTSD following military combat and based on “sufficient trauma,” and Vet Center records similarly show an assessment of chronic posttraumatic stress related to Vietnam experiences as a brown water sailor on a Navy salvage/patrol craft. Finally, the Veteran’s reported in-service combat-related stressors are consistent with service personnel records, which confirm his service in Vietnam for 11 months attached to Harbor Clearance Unit One; receipt of hostile fire pay from October 1969 to February 1970; and, the award of the Armed Forces Expeditionary Medal , which is awarded to individuals who have "participated in a United States military operation and encountered foreign opposition, or were in danger of hostile action by foreign armed forces." The Board is cognizant that a VA examiner declined to diagnose PTSD or any other mental disorder in March 2015. However, the Board finds that the examination is outweighed by the subsequent diagnoses of PTSD, posttraumatic stress, and even “other trauma related disorder” made by providers with the Vet Center and VA mental health, to include a VA psychiatrist. Given the foregoing evidence of a current diagnosis of PTSD based on an in-service stressor that is consistent with the circumstances of the Veteran’s service in Vietnam, the Board finds that the criteria for establishing service connection for PTSD are met. 2. A 60 percent rating for bilateral hearing loss is restored In any case involving a rating reduction, the factfinder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). Following a review of the record, the Board finds that the rating reduction for the Veteran's bilateral hearing loss from 60 percent to 40 percent, effective April 1, 2017, was improper, and that restoration is warranted. The Board first notes that at the time of reduction, the 60 percent rating was in effect from October 18, 2013, through April 1, 2017, a period of less than five years. Therefore, the provisions of 38 C.F.R. § 3.344(a) and (b) do not apply. In such situations, reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, in Brown v. Brown, 5 Vet. App. 413, 420-421 (1993), the United States Court of Appeals for Veterans Claims (Court) stated that there are general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). Here, the Board finds that, at the time the reduction was effectuated, it was not shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In this regard, the evidence relied upon by the RO to reduce the rating was inadequate, and did not otherwise establish by a preponderance that there was actual improvement in the Veteran's hearing loss disability, including in his ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 420-21; see also Faust v. West, 13 Vet. App. 342 (2000). This is true particularly when considering the Veteran's hearing loss in relation to its history. The Board finds that the RO's reliance on a February 2016 VA contract examination to reduce the Veteran's disability rating was misplaced. The Board is mindful that in reducing the Veteran's rating, the RO weighed the results of the Veteran’s February 2016 VA examination, which indicated that his service-connected hearing loss disability no longer met the criteria for a 60 percent rating. However, the February 2016 examiner noted the Veteran’s continued complaints regarding functional loss, including in everyday situations, and the examiner did not otherwise indicate that there was actual improvement. In fact, during the February 2016 examination, the Veteran reported functional impairment that was not previously reported during the March 2015 examination that formed the basis for the 60 percent rating. Additionally, following the proposed reduction in March 2016, the Veteran submitted a private audiological evaluation dated in September 2016 that showed poorer word recognition than was shown during the February 2016 examination, though it is unclear which wordlist was used. The Veteran also submitted a private audiogram dated in March 2017 that showed higher pure tone thresholds on audiometric testing than the February 2016 examination. Given the private audiological evidence documenting more severe hearing loss or at least fluctuation in the Veteran's hearing loss disability since the March 2015 exam, as well as the Veteran's reports of increased functional impairment since the March 2015 examination, the Board finds that the RO's reliance on the February 2016 examination to reduce the Veteran's rating renders the reduction improper. Furthermore, the RO did not make a specific finding that the Veteran's ability to function under the ordinary conditions of work and life had actually improved since his prior March 2015 VA examination, which had formed the basis for the award of his 60 percent rating. In any rating reduction case, it must be determined that an improvement in a disability has actually occurred with respect to a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413 (1993). In this case, no such determination was made by either VA examiner or by any other private or VA medical provider, and the Veteran's subsequent lay statements, including during the February 2016 examination, tend to contradict such a determination, as they show that the Veteran complained of worsening hearing loss and increased functional impairment. While there may some degree of fluctuation in the Veteran's hearing disability from examination to examination, the benefit of the doubt must be resolved in his favor. Here, the audiological findings dated after the August 2015 VA examination results support fluctuation in the Veteran's hearing loss disability, and the lay evidence supports that there was not improvement in the Veteran's ability to function under the ordinary conditions at the time of the reduction. Given the foregoing, the Board finds that the evidence of record was insufficient for the RO to reduce the Veteran's disability rating and, thus, that reduction was improper. The law is clear that certain procedures must be followed when a disability rating is reduced. Where a rating reduction was made without observance of law, the erroneous reduction must be vacated, and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). That action is required in the instant case. Accordingly, the previously assigned 60 percent rating for the Veteran's service-connected hearing loss is restored as of the date of reduction on April 1, 2017.] REASONS FOR REMAND 1. The issue of entitlement to a TDIU is remanded. The Veteran contends that he is unable to obtain or maintain gainful employment due to his service-connected disability. In support of his claim, he submitted an April 2016 statement from a private physician indicating that the Veteran was unable to work due to “multiple combined service connected disabilities” that were “expected to be permanent.” However, the physician did not identify the disabilities considered, nor did he support his statement with any rationale. Thus, the Board finds the statement insufficient to establish entitlement to a TDIU at this time. Nevertheless, it is sufficient to warrant an examination and opinion that also takes into account the Veteran’s now service-connected PTSD. As such, remand is necessary. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the examiner should respond to the following: (a.) Without regard to the Veteran’s age or the impact of any nonservice-connected disabilities, it is at least as likely as not (50 percent probability or greater) that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. In offering this impression, the examiner must take into consideration the Veteran’s level of education, training, and previous work experience. For this purpose, notify the examiner that the Veteran’s service-connected disabilities are: (1) bilateral hearing loss; (2) tinnitus; and (3) PTSD. (b.) The physician’s opinion should include an evaluation of the limitations and restrictions imposed by the Veteran’s service-connected disabilities on routine work activities, with due consideration of his work history. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner’s consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. ] S. C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Fagan, Aileen 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.