Citation Nr: 1442778 Decision Date: 09/24/14 Archive Date: 09/30/14 DOCKET NO. 11-24 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE The propriety of the reduction of the evaluation for psychoneurosis, depressive neurosis from 50 percent to 10 percent disabling, effective June 1, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active duty service from December 1977 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which reduced the Veteran's evaluation for psychoneurosis, depressive neurosis, from 50 percent disabling to 10 percent disabling, effective June 1, 2011. The Veteran timely appealed the propriety of that reduction. In August 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been obtained and is of record. FINDING OF FACT The preponderance of the evidence does not clearly establish that there was sustained improvement in the Veteran's service-connected psychoneurosis, depressive neurosis, so as to warrant a rating reduction. CONCLUSION OF LAW The March 2011 rating decision reducing the Veteran's rating for his service-connected for psychoneurosis, depressive neurosis, from 50 percent disabling to 10 percent disabling was improper and restoration of the 50 percent evaluation is therefore warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.344 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000, 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in detail below, sufficient evidence is of record to grant the Veteran's appeal for restoration of the 50 percent rating for psychoneurosis, depressive neurosis. Therefore, no further notice or development is needed with respect to the VCAA. II. The Merits of the Claim The Veteran has appealed a reduction in the disability rating for his psychoneurosis, depressive neurosis from 50 percent to 10 percent disabling, effective June 1, 2011. The Veteran contends that the agency of original jurisdiction erred in reducing his disability rating from 50 percent to 10 percent. A veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155 (West 2002). Procedurally, 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 currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. In addition, the RO must notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by VA within 30 days from the date of the notice. If no additional evidence is received within the 60 day period and no hearing is requested, 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 veteran expires. 38 C.F.R. § 3.105(e) (2013). In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995). A rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to temporary or episodic improvement. 38 C.F.R. § 3.44(a) (2013). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The above requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). When the RO reduces a rating without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288 (1999). From a procedural standpoint, the Veteran's psychoneurosis, depressive neurosis, was properly reduced. The RO prepared a rating decision proposing the reduction in September 2010, providing the rationale behind the proposed reduction. The Veteran was notified thereof later that month, including his right to request a hearing within 30 days. The RO then issued a rating decision reducing the evaluation in March 2011. Thus, the Veteran received proper notice and the benefit of other measures under 38 C.F.R. § 3.105(e). In addition, the Veteran's 50 percent disability rating for psychoneurosis, depressive neurosis was in effect from February 10, 2004, until May 31, 2011, a period of more than five years. Hence, the provisions under 38 C.F.R. § 3.344 for careful review to produce the greatest degree of stability of disability evaluation are applicable in this instance. In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. It is the responsibility of the rating specialist to interpret reports of examination in light of the whole record history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2 (2013). These provisions impose a clear requirement that rating reductions be based on the entire history of the veteran's disability. Brown v. Brown, 5 Vet. App. 413 (1993). The rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13 (2013). In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. Brown, 5 Vet. App. 413. See 38 C.F.R. §§ 4.2, 4.10 (2013). A claim as to whether a rating reduction was proper must be resolved in the veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. 413 . Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2013). The Veteran's psychoneurosis, depressive neurosis, is rated under Diagnostic Code 9410 and utilizes the General Rating Formula for Mental Disorders. Under such regulations, ratings are assigned according to the manifestation of particular symptoms. Under the formula, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms which were controlled by medication. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is 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 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. Id. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Furthermore, the Global Assessment of Functioning (GAF) scores that have been reported during the rating period for consideration must be considered. GAF scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed.) (DSM-IV), p. 32). GAF scores from 91 to 100 represent superior functioning in a wide range of activities. GAF scores from 81 to 90 represent absent or minimal symptoms. GAF scores from 71 to 80 represent no more than slight impairment in social, occupational or school functioning. GAF scores of 61 to 70 represent some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or schooling functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. GAF scores from 51 to 60 represent moderate symptoms, such as flat affect and circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning (such as few friends, conflicts with peers or co-workers). GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 (incorporating by reference VA's adoption of DSM-IV, for rating purposes). The Board now turns to pertinent evidence of record, focusing on the information available to the RO at the time the reduction was effectuated. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). As previously considered in the May 2008 Board decision granting the Veteran's 50 percent rating, in a May 2004 VA examination for mental disorders, the Veteran was assigned a GAF score of 65-70. The examiner found the Veteran's affect was blunted with depressed mood. The examiner found no evidence of a formal thought disorder, no hallucinations, and no delusion. The Veteran complained of difficulty falling and staying asleep, and denied crying spells or any suicidal or homicidal ideations. The Veteran denied having any friends or spending much time outside of his home. Insight was found to be marginal and judgment was found to be fair. The examiner concluded that the Veteran's psychiatric symptoms were not so severe as to render him unemployable. However, the Veteran was angry and frustrated during the examination after being terminated from his job at the Post Office in November 2003. The record reflects that after the November 2003 termination, the Veteran was later able to return to work at the Post Office. However, he was again terminated after his house burnt down in August 2004 and he took extended leave from work. The Veteran briefly stayed in housing provided by the Red Cross, and then found an apartment for himself and his children. However, the Veteran was evicted in December 2004 for failure to pay rent. The Veteran then became homeless, and was unable to provide child care for his younger children. The record also indicates that the Veteran was raising his children on his own because his wife left. The Veteran's children were then taken away by the state. The medical evidence indicates that these events played a part in further exacerbating the Veteran's depression. In a January 2005 VA physical examination, the Veteran was assigned a GAF score of 60, and no suicidal or homicidal ideations were noted. In January 2005, VA outpatient treatment records indicate that a GAF of 49 was assigned. Also, in a January 2005 Mental Health Intensive Case Management Screen, the Veteran was found to meet the high-risk criteria for consideration as a candidate for the Mental Health Intensive Case Management/Community Support Program Team, which includes a diagnosis of a severe and persistent mental illness and either 3 or more admissions in the past 12 months or 30 days total of inpatient psychiatric care in the past 12 months. In February 2005, a GAF of 60 was again assigned according to VA treatment records. Finally, there are also records from February and March 2005, where the Social Security Administration (SSA) determined that the Veteran was "unable to meet the basic mental demands of competitive work on a sustained basis." The SSA also noted that the Veteran had a moderate limitation remembering simple instructions, and a marked limitation remembering detailed instructions. The SSA relied in large part on letters submitted from the Veteran's private treatment provider, E.G., M.D (Dr. G.), in reaching its overall conclusion that the Veteran was unable to work. The Board notes that SSA and Dr. G. based their determinations that the Veteran was unemployable on all disorders currently assigned to the Veteran - not just his service-connected disorder. According to the SSA, this included major depression, mixed personality disorder, mood disorder, dysthymic disorder and schizotypal personality disorder. In a December 2004 statement, Dr. G., who treated the Veteran from December 2004 to February 2005, opined that the Veteran was currently disabled from any work. There is also a letter dated January 2005 wherein Dr. G. reiterates this same opinion. The final communication from Dr. G. is dated February 2005, wherein Dr. G. concluded that the Veteran had difficulty with concentration, insomnia, crying spells, constant preoccupation with his financial difficulties, and an inability to find a home and have his children rejoin him. Dr. G. concluded that it was unlikely that the Veteran would recover enough to return to work, citing diagnoses of chronic depression, mixed personality disorder, painful left shoulder movement, and severe at home stressors to support his conclusion. A GAF score of 50 was assigned at this time as well. VA treatment records include primary care substance abuse treatment dated from September 2009 to September 2010. These records indicate the Veteran continued to receive treatment for his substance abuse issues and other health concerns. The examiner indicated the Veteran "is not doing that well." The Veteran has reported he feels "real discouraged." He also discussed the stresses in his personal life regarding his divorce and his children's welfare. Finally, in June 2010, the Veteran underwent a VA mental disorders examination for the purpose of obtaining an increased rating. The Veteran reported that since his last VA examination he has had no psychiatric admissions but remained in VA outpatient care and has had no suicide attempts. The Veteran reported he has difficulty with memory and lack of motivation. He denied significant periods of remission of symptoms. The VA examiner noted the Veteran had a history of opiate addiction and recently had a positive test result. The Veteran stated he only socializes with family members and denied any episodes of inappropriate behavior, violence or threats against others. He stated he was able to perform activities of daily living and is able to maintain his hygiene. The Veteran stated he was not employed since the May 2004 VA examination as he felt he was "getting too old and does not have adequate concentration." A mental status examination revealed the Veteran was alert and oriented. His speech was relevant, coherent, and without formal thought disorder. He denied hallucinations, delusions, symptoms of phobia, other major anxiety disorders, and mania. He described his mood as depressed. He reported insomnia, low appetite, crying spells, and loss of interest in "everything except TV." He stated he had previously enjoyed going out to movies, socializing, and playing sports. He was concerned about his children's welfare. He reported his energy was low. He denied suicidal and homicidal ideation. There was no impairment in communication or thought processes and no reckless or inappropriate behavior. He was diagnosed with dysthymic disorder; opioid dependence, in remission, with substitution therapy; and active mixed substance abuse. His GAF score was 65 due to depression alone and 55 due to impact of substance abuse. The VA examiner determined the Veteran was competent to manage any benefit payments in his own best interest. The examiner explained there was no increase in the severity of the [V]eteran's depression since the last VA examination." Furthermore, "[a]ny increase in concentration and amotivation, are the result of substance use. Substance abuse increases mood instability, irritability, sleep disruption and impulsivity. The [V]eteran is considered employable as the severity of his psychiatric condition alone does not render him unemployable. Employment typically has been negatively impacted by substance abuse." An addendum to the June 2010 VA examination report was made in May 2011 which stated the Veteran's substance abuse disorders are not secondary to his service-connected disability and were not exacerbated by his service-connected disorder as evidenced by his records indicating the substance abuse disorder pre-dated his military service. Having reviewed the evidence in its entirety, the Board finds that the RO did not have sufficient justification to implement a reduction in rating from 50 to 10 percent for the Veteran's service-connected psychoneurosis, depressive neurosis. Namely, the Board finds that it has not been shown that there has been a material improvement of the Veteran's service-connected psychoneurosis, depressive neurosis under the ordinary conditions of life and work. Again, 38 C.F.R. § 3.344 (a) provides that before a stabilized rating can be reduced, the entire record of examinations and the medical-industrial history must be reviewed to ascertain whether the examinations upon which the reduction is based are full and complete; and that examinations less full and complete than those on which payments were authorized or continued cannot be used as a basis of reduction. Further, ratings on account of diseases subject to temporary and episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Id. Additionally, although material improvement in the physical or mental condition is clearly reflected, the evidence must make it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Id. After considering all the evidence, the Board finds that the requirements set forth above have not been met. In this respect, the June 2010 proposed reduction rating decision and the May 2011 final reduction rating decision reflect no suggestion of any consideration of 38 C.F.R. § 3.344(a). The RO's decision to reduce was not in accordance with law because it did not make a finding of "material improvement;" much less that it was reasonably certain that the improvement would be maintained under the ordinary conditions of life. Instead, the RO appears to have reduced the rating for the Veteran's service-connected disability based upon the Veteran's GAF score of 65 as demonstrated at the June 2010 VA examination. In addition, the rating decision also noted the VA examiner indicated there had not been an increase in severity of his depression since his last VA examination in 2004. Furthermore, VA outpatient records dated from September 2009 to September 2010 indicated the Veteran was treated for medical and substance abuse problems, not his depressive neurosis. However, the Board notes there is no specific finding that the Veteran's condition had actually improved under the ordinary conditions of life at the time of the September 2010 proposed reduction or the June 1, 2011, effective date of the reduction; let alone that there was "material" and sustained improvement. As stated in the May 2008 decision, the Board recognizes that the Veteran has been assigned markedly different GAF scores ranging from 49 to 70 throughout the pendency of his appeal for an increased rating. While these scores do represent different levels of social and occupational impairment, the Board found that scores of this range, considered in conjunction with the remaining evidence of record, indicate that a 50 percent disability rating was appropriate. The Veteran's GAF score at the June 2010 examination is consistent with the prior history of fluctuation as discussed by the Board. Regarding his VA outpatient treatment, the Board notes that the record reflects the Veteran has reported mental health symptoms which may be encompassed by his service-connected psychoneurosis, depressive neurosis. In sum, the medical evidence of record at the time of the rating reduction was inadequate to meet the 38 C.F.R. § 3.344(a) criteria because nothing found in the June 2010 VA examination, or in any of the other medical evidence found in the claims file at the time of the reduction, "clearly warrants the conclusion that sustained improvement has been demonstrated." Even if it did, the Board notes that the record did not include a medical opinion that it was "reasonably certain that the improvement will be maintained under the ordinary conditions of life." Accordingly, the Board finds that the March 2011 rating decision that reduced the Veteran's psychoneurosis, depressive neurosis, disability rating was improper. Thus, restoration of the 50 percent disability evaluation for the Veteran's service-connected psychoneurosis, depressive neurosis, is warranted, effective June 1, 2011. See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (improper reduction reinstated effective date of reduction). (CONTINUED ON NEXT PAGE) ORDER The reduction in evaluation for psychoneurosis, depressive neurosis, was not proper; restoration of the 50 percent evaluation is granted, effective June 1, 2011, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs