Citation Nr: 1120868 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 07-29 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether reduction from 100 percent to 50 percent for depression, delusional disorder in the March 2007 rating was proper. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the reduction of his 100 percent rating for depression, delusional disorder, to 50 percent, effective June 1, 2007. FINDINGS OF FACT 1. A May 2006 rating decision advised the Veteran that the 100 percent rating for depression, delusional disorder was proposed to be reduced. 2. Reduction of the Veteran's disability rating for depression, delusional disorder from 100 percent to 50 percent was implemented, effective from June 1, 2007, by a March 2007 rating decision. 3. The preponderance of the evidence did not support the reduction of the Veteran's depression, delusional disorder as the disability continued to produce total occupational and social impairment. CONCLUSION OF LAW The reduction of the disability rating for the Veteran's depression, delusional disorder, from 100 percent to 50 percent was not in accordance with law, and the 100 percent rating is restored effective June 1, 2007. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e); 3.344 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the context of a reduction in a rating, the procedures for notification are described at 38 C.F.R. § 3.105. As the decision below is favorable to the Veteran, no further duty to notify or assist the Veteran applies. The Veteran asserts his previously assigned 100 percent disability rating for the service-connected depression, delusional disorder should be reinstated. The record indicates that in February 2004, the RO granted service connection for depression, delusional disorder and assigned an initial 100 percent rating from May 3, 2003. In May 2006, the RO notified the Veteran that it proposed to reduce the evaluation for depression, delusional disorder from 100 percent to 30 percent. The Veteran received notice of the proposal in a letter of the same month and was told that his symptoms were consistent with 30 percent, and he failed to report for his VA examination. He was given the opportunity to request a personal hearing to present evidence or argument on behalf of his claim. He was given the opportunity to undergo a VA examination in February 2007. Thereafter, in a March 2007 rating decision, the RO reduced the disability evaluation of depression, delusional disorder from 100 percent to 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9434-9208. The 50 percent rating was made effective on June 1, 2007. A rating reduction must be based upon review of the entire history of the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). VA must ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Id. Prior to reducing a Veteran's disability rating, VA is required to comply with pertinent 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. Generally, when reduction in the evaluation of a service- connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons thereof. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2010). In the advance written notice, the beneficiary will be informed of his right for a pre-determination hearing, and if a timely request for such a hearing is received (i.e., within 30 days), benefit payments shall be continued at the previously established level pending a final determination. 38 C.F.R. § 3.105(i)(1). Unless otherwise provided, final rating action will be taken and the award will be reduced or discontinued 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. 38 C.F.R. § 3.105(e). In this case, the Board finds that the RO complied with the procedural requirements of section 3.105(e). The Veteran was given the required notice of the proposed reduction, and the record reveals that the Veteran received the notice. He was given the required notice of his right to a predetermination hearing, and he did not request such a hearing within the requisite period of time. Moreover, the rating reduction was not made effective before the last day of the month in which a 60-day period from the date of notice to him. Although the due process standards set forth in 38 C.F.R. § 3.105(e) were met in this case, in considering the evidence of record under the laws and regulations as set forth, the Board finds that the reduction of the Veteran's disability rating for his service-connected depression, delusional disorder was not proper. Congress has provided that a Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a Veteran's disability rating without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (2010). That section provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. However, the provisions of 38 C.F.R. § 3.344 specify that ratings on account of diseases subject to temporary or episodic improvement, such as, psychiatric disorders will not be reduced on any one examination, except in those instance where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The regulations provide further, that these considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. The question now is whether the reduction was proper based on the evidence of record. Where a disability rating has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.344(c). Where a disability rating has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. § 3.344(a) and (b). Here, the Veteran's 100 percent disability rating was awarded effective May 3, 2003, and was reduced effective June 1, 2007, less than 5 years later. Accordingly, 38 C.F.R. § 3.344(c) applies. The Veteran underwent a VA examination in December 2003, the basis of his initial 100 percent rating for depression, delusional disorder. He was late for the examination, stating that he initially was not coming, because he did not think anyone would believe him. His eye contact was poor, he denied auditory or visual hallucinations, and denied suicidal and homicidal ideation. He denied any history of violent behavior. No speech abnormalities were noted. He denied anxiety; however, he stated he did not want to talk to people, he just wanted to be alone. He related that he could look at people and determine if they were HIV positive. He stated that he did not trust the government because operatives were linked to the mafia in Vegas. His diagnoses were delusional disorder (somatic type) and depressive disorder, not otherwise specified. His global assessment of functioning (GAF) was 40. In July 2004, the Veteran was seen by VA for a psychiatric consultation. He stated that he had many HIV tests which were all negative, but he believed they were really positive. He stated that he had a special gift that could sense when a person was HIV positive. He denied auditory hallucinations and stated that he could see through objects that weren't there at times. He reported distraction and the inability to concentrate. He stated that he was unable to hold down a job because of his inability to function in the workplace. Mental status examination showed he was uncomfortable at times, and exhibited some restlessness. He denied suicidal and homicidal ideation. He was alert and oriented in all spheres, His insight was fair and his judgment was intact. He was found to have a long history of a fixed delusion about a government conspiracy to suppress HIV tests in order to prevent financial ruin from treating patients with appropriate medication. He continued to believe he was HIV positive despite many tests to the contrary. He had some feelings of depression with obsessive compulsive traits. He was treated with Paxil 10 mg. In April 2005, the Veteran was seen by VA for a psychiatric consultation. He reported that he had taken his medication until it ran out, and reported feeling better and sleeping better. He stated that he did not seek mental health treatment because his sister was mocking him. He related that she moved to Georgia in the last month, so he felt better about seeking treatment. He continued to report depression and intrusive thoughts about having sex with girls so he stated he was better off alone and not socializing. He still believed that he was HIV positive, that it was a government conspiracy, and that God had spoken to him and told him he only had 12 more years to live. He exhibited magical thinking, denied hallucinations, reported insomnia, and had nightmares of a sexual nature. He still exhibited restlessness, anxious mood, fair insight, and intact judgment. The diagnostic impression was mood disorder (provisional) and delusional disorder, rule out obsessive compulsive disorder. He was continued on Paxil, 10 mg., and given .5mg. of Risperdal at bedtime to assist with sleep and delusional behavior. He was scheduled for another appointment in June 2005. The Veteran was seen by VA in the mental health clinic in August 2005. He related that his back and feet were hurting him from injuries. He was having trouble thinking, and found it hard to concentrate when in pain. He stated that he was still taking the Paxil but had discontinued the Risperdal because his sister told him that he should not take chemicals. He stated that his nightmares came and went randomly. He still believed he had HIV, that he was able to tell when others were infected, and that it was a government conspiracy. He stated that he wanted to continue to take Paxil as it gave him energy. He stated that he was stressed lately due to his injuries. He was unable to get thoughts out of his head, he sometimes checked things repeatedly, and washed his hands often as he was afraid of germs, (washed them five times a day) He stated that he usually wanted to stay alone and after meeting new people, he usually became depressed. He still related that God spoke directly to him. Mental status examination showed good eye contact, but anxious fidgeting. He was pleasant and cooperative and expressed relief that the examiner was helpful after anticipating the worst. Speech was normal in rate, tone, and volume, rapid, over inclusive, hesitant, circumstantial and at times slightly tangential. Attention and concentration were fair to distractable. Insight was fair and judgment was intact. The impression was that the Veteran had a history of major depression with psychotic features vs. delusional disorder vs schizoaffective vs obsessive compulsive disorder with overvalued ideas and some hesitancy regarding treatment and noncompliance. The diagnosis was delusional disorder, history of major depression with psychotic features, rule out schizoaffective disorder vs obsessive compulsive disorder with overvalued ideas. His GAF was 48. It was noted that the Veteran had increased his Paxil from 10 mg to 20 mg the previous month on his own. The examiner increased the Paxil to 30 mg and he was restarted on Risperdal, .5mg for 6 nights, thereafter, taper upwards to 1 mg. In January 2007, the Veteran underwent a VA examination on a fee basis. The Veteran reported he had symptoms on a daily basis and that the symptoms were severe in nature. He was able to maintain all activities of daily living without assistance. He had severe impairment of thought process but only minimal impairment in communication. Mental status examination indicated the Veteran was alert and oriented in all spheres. Eye contact was intense. There was no psychomotor retardation or agitation. Speech was of normal rate, volume, and tone. Mood was euthymic with suspicious affect, linear and goal directed without looseness of associations. However, he had an elaborate delusional scheme where he believed he was infected with AIDS and the government had performed a cover-up to deny and falsify his AIDS testing. He was very paranoid and suspicious and believed that God had spoken to him in the past. He denied suicidal or homicidal ideation, intent, or plan. He denied current auditory, visual, and tactile hallucinations and did not appear to respond to internal stimuli. Cognition appeared impaired. Insight and judgment were poor. The diagnosis was delusional disorder. His GAF was 30. The Veteran informed the examiner that he only took Respirdal a couple of times a month for sleep. He was noted by the examiner to have severe social and occupational impairment and was unemployable from a psychiatric standpoint. The examiner opined that unless the Veteran was able to become more compliant with treatment, his prognosis was very poor. The Veteran underwent an additional VA examination in February 2007. It was noted that the Veteran received outpatient psychiatric treatment, although he was generally noncompliant with his treatment for various reasons. He related that he did not feel comfortable with a male provider, but his present provider was male. He was noted to be prescribed Risperdal, increased to 2 mg. It was related that he had not worked since service, and although he did some minor work with a friend in a warehouse, he was only helping his friend, not pursuing this full-time. The examiner indicated that the Veteran had daily, constant, moderate psychiatric symptoms. It was noted that there had been no remission of the Veteran's symptoms. The examiner stated that the Veteran did contend that he was unemployed because of his mental disorder and that the Veteran was delusional, but that this should not stop him from working, though he would need an accommodating environment. On mental status evaluation, the Veteran was within normal limits, but he appeared very nervous and talked quickly. There was no impairment of thought processes. He suffered from daily delusions which were severe in degree. There was no memory loss. He had no obsessive or ritualistic behavior. He was able to perform activities of daily living and he was able to maintain personal hygiene. He had rapid speech. He did not have panic attacks or impulse control. He had anxiety and depression regarding the thought that he had HIV. The diagnosis was delusional disorder, somatic type. His GAF was 50. The examiner opined that the Veteran was employable from a psychiatric perspective if he remained compliant with treatment and had a work environment that understood his illness and was willing to accommodate him. The Veteran was seen by VA for psychiatric consultations on an outpatient basis from February 2007 to July 2007. A February 2007 note describes the Veteran as having psychotic features and exhibiting delusions. His Risperdal was noted to have been increased to 2 mg. His GAF was noted to be 47. In March 2007, the Veteran was seen in the mental health clinic with dark glasses on, indicating he needed to stay calm. He stated he was on Paxil 30 mg for a while and he felt better until it stopped working after a couple of months. He exhibited slight psychomotor anxiety and his eye contact was hard to assess because of the dark glasses. His mood was slightly down and worried. His speech was overinclusive, hesitant, circumstantial, and he tended to repeat himself. His thought process was fairly logical, sequential and goal-directed except related delusional system. His attention and concentration was fair to distractable. The diagnostic impression was delusional disorder. His GAF was 45. The examiner raised his Risperdal to 3 mg and he was given a trial of Prozac 20 mg. The Veteran began to receive therapy in April 2007. He was sad, fatigued, had GI complaints, hypersomnolence, isolation, and continued delusions about HIV. He was to continue his prescriptions provided by the psychiatrist and to begin therapy in 6 weeks to focus on coping skills. In June 2007, the Veteran was seen in the mental health clinic and he indicated that he thought his Risperdal was at a good level and had improved his sleep to 9 hours. He related that it was hard to get going in the morning but he did not feel sedated. He related that a friend stayed with him. He reported that taking helped. A discussion was had on safer alternatives such as Wellbutrin and the risks of taking other person's controlled medication. Mental status examination showed his mood was a little better, he was less worried. Eye contact was good. His affect was anxious, obsessional, less flat, and he able to smile/congruent. His insight was slightly better and his judgment was intact. His diagnosis was delusional disorder. His GAF was 45. He was seen by his psychiatrist and his Risperdal was at 3 mg to taper upwards according to response to encourage compliance. His Prozac was discontinued and he was started on Wellbutrin. The Veteran's depression, delusional disorder is rated under 38 C.F.R. § 4.130, Diagnostic Codes (DCs) 9434-9208, for major depressive disorder, delusional disorder respectively. Under the General Rating Formula for Mental Disorders, 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 personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. 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 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); inability to establish and maintain effective relationships is to be rated 70 percent disabling. 38 C.F.R. § 4.130. 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 is to be rated 50 percent disabling. 38 C.F.R. § 4.130. When evaluating all of the medical records since the Veteran was service-connected for depression, delusional disorder, effective May 2003, his condition has not improved. His GAF was 40 during his December 2003 VA examination. His most recent GAF was 45 in June 2007. During this rating period, his GAF was a low of 30 and a high of 50. His medication has continually been adjusted and he has been changed from Zoloft, to Paxil, to Prozac, to Wellbutrin. He was also prescribed Risperdal, beginning at .5 mg, and continually increapsing the dosage to 3 mg. Although he most recently stated he slept better with his increased medication, he still exhibited a fixed delusion of having HIV, although all of his testing was negative, and of God speaking to him about his HIV status. He only most recently started therapy in 2007, and for the most part, had continued to be noncompliant prior to that time. He was initially granted a 100 percent rating based on examination that showed he had persistent delusional thinking that adversely affected his functioning and social well being. In January 2007, the Veteran's VA examination report indicated that he still had a delusional disorder and that due to his psychiatric disability, he was unemployable, and unless he became more compliant with his treatment, his prognosis was poor. The next month, he had another VA examination in February 2007. He was found to still have a delusional disorder, and although this examiner stated that he was not unemployable, she placed conditions on his ability to work which included remaining compliant with treatment and finding employment that would accommodate his delusional disorder. Both examiners indicated that the Veteran was delusional, that the condition was constant, that his delusions were daily, and that they were severe in degree. His GAF scores were also highly probative in this regard, showing GAF mostly in 40's, which according to DSM-IV, GAF scores in the 40s indicate serious impairment, including having no friends and being unable to work. Reviewing the medical evidence in its totality, this has not shown an improvement in the Veteran's psychiatric condition since his initial examination in December 2003. Reexamination in January and February 2007, or during his VA outpatient treatment throughout the rating period have not disclosed improvement in the Veteran's psychiatric disability, therefore, the reduction from 100 percent to 50 percent for the Veteran's depression, delusional disorder was not proper, and the reduction is not warranted. ORDER The reduction in evaluation for depression, delusional disorder was not proper, and restoration of the 100 percent disability rating, effective June 1, 2007, is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs