Citation Nr: 1313868 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 06-17 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Propriety of the reduction in evaluation from 50% to 30% for dysthymia effective December 1, 2005. REPRESENTATION Appellant represented by: Kevin Janey, Agent ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from August 1982 to May 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. FINDINGS OF FACT 1. A September 2005 rating decision reduced the evaluation for the Veteran's service-connected dysthymia from 50% to 30% effective December 1, 2005. 2. As of December 1, 2005, the 50 percent evaluation for the Veteran's service-connected dysthymia had been in effect for less than five years. 3. The RO's September 2005 decision to reduce the evaluation for dysthymia was made in compliance with applicable due process laws and regulations and supported by a preponderance of the evidence that the Veteran's dysthymia underwent sustained improvement. 4. At the time of the reduction and for a sustained period thereafter, the Veteran's dysthymia (alternately diagnosed as major depression) was in partial to full remission and manifested by no more than mild symptoms of depressed mood and anxiety. CONCLUSION OF LAW The September 2005 rating decision reducing the Veteran's disability rating for dysthymia from 50 percent disabling to 30 percent disabling was proper; the Veteran is not entitled to restoration of the 50 percent disability rating. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9433 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). As will be discussed in further detail below, the Veteran received proper notification prior to the initial unfavorable agency decision in September 2005. Specifically, the Veteran was informed of the responsibilities imposed upon him with respect to submitting evidence which shows that the proposed reduction was not warranted, and was also informed of the evidence that VA received in connection with the claim (e.g., medical records which show improvement). Finally, the Veteran was informed to send the information to the RO and to also contact the RO if he had questions or needed assistance. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 (2012). All relevant treatment records and reports identified by the Veteran have been obtained. He was afforded a VA contract examination in March 2005 that considered the Veteran's medical history pertaining to his psychiatric disorder. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159(c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). As a final note, the Board observes the Veteran's claim was previously remanded for review of new evidence and readjudication. This action was accomplished and a May 2009 supplemental statement of the case was issued. There has been substantial compliance with the Board's prior remand and adjudication of the claim may proceed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis In May 2001, the RO granted an increased rating of 50 percent for the Veteran's dysthymia disorder. In August and September 2002, the Veteran submitted statements to the effect that his psychiatric disorder was worse. In December 2002, the RO continued the 50 percent rating for the dysthymia disorder. The Veteran submitted a statement in September 2003 continuing to assert that his dysthymia disorder was significantly disabling. After undergoing a VA examination in March 2005, the RO proposed to reduce the Veteran's disability rating from 50 to 30 percent in a May 2005 rating decision, no earlier than October 1, 2005. Thereafter, in a September 2005 rating decision, the RO reduced the disability rating for dysthymia disorder to 30 percent, effective December 1, 2005. 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) (2012). 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) (2012). The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). In the instant case, the RO procedurally complied with 38 C.F.R. § 3.105 regarding the manner in which appellant was given notice of the proposed rating reduction and the implementation of that reduction. In May 2005, notice of the proposed rating reduction was provided, informing the Veteran that a March 2005 VA contract examination had shown an improvement in his dysthymia. The May 2005 notice informed the Veteran that he could submit additional evidence to show that the compensation payments should not be reduced. Furthermore, the Veteran was informed that if no additional evidence was received within 60 days, his disability evaluation would be reduced. Finally, the May 2005 notice letter advised the Veteran of his right to request a pre-decisional personal hearing within 30 days to present evidence or argument. With respect to a pre-decisional hearing, the Board acknowledges the Veteran asserts he requested such a hearing by telephone prior to the expiration of the 30-day window. See June 2005 statement (received by VA on July 8, 2005). However, despite the Veteran's assertions, there is no documentation of record that a request for a pre-decisional hearing was made within 30 days of the May 2005 notice of proposed reduction. The Veteran's statement, received by VA on July 8, 2005, after the expiration of the 30-day window, is the first evidence of a hearing request. Therefore, while the Veteran was not provided a personal hearing prior to the effectuation of the rating reduction in September 2005, one was not required because a timely request (within 30 days) had not been received. See 38 C.F.R. § 3.105(i). Thus, the Board finds that the RO fulfilled its procedural requirements set forth under 38 C.F.R. § 3.105 for rating reductions. The Board will now consider the propriety of the rating reduction. In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (2012). These considerations apply to ratings that have continued for long periods at the same level (five years or more), and not to disabilities that have not become stabilized and are likely to improve. In this case, the 50 percent evaluation was effective March 5, 2001, less than five years before the reduction took effect on December 1, 2005. Thus, various provisions of 38 C.F.R. § 3.344 pertaining to stabilization of disability ratings do not apply and reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Nevertheless, the Court noted in Brown v. Brown that there are several general VA regulations that apply to all rating reductions regardless of whether the rating has been in effect for five years or more. 5 Vet. App. 413, 420- 21 (1993). 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.; see also 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (2012). Finally, 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, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, the burden lies on VA to show by a preponderance of the evidence that the RO's reduction was warranted. Kitchens v. Brown, 7 Vet. App. 320 (1995). A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless the Board concludes that a fair preponderance of evidence weighs against the claim. Brown, 5 Vet. App. at 421. Dysthymia, like most other acquired psychiatric disorders (including major depression) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130. The General Rating Formula provides, in pertinent part, for a 30 percent evaluation where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-car, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent evaluation is warranted where the disorder is manifested by 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 for example, 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. The nomenclature employed in the rating schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. § 4.130 (2012). The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. GAF scores included in the record 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). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) because ratings of current functioning will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for the assignment of a disability evaluation. The Veteran was assigned a 50 percent evaluation for dysthymia by a May 2001 rating decision based on a personal statement, a medical statement from his family physician and a statement from his employer; no VA examination was conducted prior to the May 2001 increase. In this regard, a March 2001 statement from Dr. S.T. indicates the Veteran's work capacity had been "severely impaired" over the several years prior, and his overall ability to handle significant stressors may be limited. Medical evidence of record between the May 2001 rating decision and the time of the VA reduction from 50 percent to 30 percent, which became effective December 1, 2005, consists of non-VA psychiatric treatment records and a March 2005 VA contract examination, which served as the basis of the RO's May 2005 proposed rating reduction. Initially, the Board observes that the March 2005 VA examiner reviewed the Veteran's medical history and administered a complete psychiatric evaluation. As such, the Board finds that the March 2005 VA examination is at least as full and complete as the record at the time the Veteran's disability evaluation was increased, and is sufficient to serve as the basis for a reduction. See 38 C.F.R. § 3.344(a). The March 2005 VA contract examination indicates the Veteran reported on time and neatly dressed. He had average eye contact, was cooperative and appeared relaxed during the interview. His speech was non-pathological, thoughts were coherent and relevant and there was no evidence of delusional thinking or paranoid mentation. Further, his cognitive functioning and affect were normal and his insight and judgment were average. Finally, there were no homicidal or suicidal ideations. The examiner noted that the Veteran had at best improved psychologically within the last four years, and at the least, had not deteriorated from the level of psychological functioning noted in his treatment records. A diagnosis of major depressive disorder in partial remission was rendered, and a GAF score of 65, representing some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulty in social or occupational functioning, but generally functioning pretty well. See DSM-IV. Other treatment records submitted by the Veteran dated during the period between the May 2001 evaluation increase and September 2005 reduction also indicate a pattern of improvement in the Veteran's disability level. For example, a March 2003 psychiatric note indicates the Veteran reported difficulty concentrating and presented with a mildly anxious mood with coherent and goal-directed speech with broad range of affect. A March 2004 psychiatric note indicates the Veteran presented with a normal mood, appropriate affect and appropriate appearance with no cognitive deficits. This record indicates the Veteran continued to be free of mood symptoms and noted a diagnosis of major depression, in remission. While July and December 2004 psychiatric records indicate the Veteran presented with a mildly depressed or anxious mood and mildly constricted affect, both continued to include a diagnosis of major depressive disorder in full remission. Considering the evidence discussed above, the Board finds a preponderance of the evidence supports a finding that the Veteran's dysthymic disorder, alternately diagnosed as major depressive disorder, underwent a sustained improvement during the period between the May 2001 increased rating and September 2005 reduction. The March 2001 statement from the Veteran's physician noted a "long history" of depression and nervous/emotional disorders with symptoms that had stabilized and severely impacted his work capacity. Conversely, treatment records since this time, along with the March 2005 VA contract examination, indicate the Veteran's symptomatology had steadily significantly improved to the point of full or at least partial remission by the time of the September 2005 decision reducing the assigned evaluation to 30 percent. In addition to the evidence showing sustained improvement, the Board finds that the Veteran's symptomatology during this timeframe does not more closely approximate that contemplated by a 50 percent evaluation under the General Rating Formula. In this regard, there is no competent evidence the Veteran exhibited symptoms such as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands or impairment of short- and long-term memory. See 38 C.F.R. § 4.130. The Board has considered the Veteran's assertion that, during this timeframe, his psychiatric diagnosis was changed from dysthymia to major depressive disorder, representing an upgrade in diagnosis. However, despite what may be an "upgraded" diagnosis, both psychiatric disorders are evaluated pursuant to the same rating criteria under the General Rating Formula; such evaluations are based on relevant symptomatology, not the diagnosis or medication utilized for treatment. See 38 C.F.R. § 4.130. The Board has also considered treatment records dated after the September 2005 reduction the Veteran has submitted in support of his contention that his psychiatric disability has not undergone a sustained improvement. See Dofflemyer, 2 Vet. App. at 281-82. In this regard, the Board acknowledges a June 2007 mental health examination which notes symptoms including marginal impairment of thought process and judgment, difficulty sleeping and focusing his thoughts due to anxiety and impairment of social communication and memory with multiple panic attacks per week. The June 2007 mental health examination notes a diagnosis of recurrent major depressive disorder with a GAF score of 48, representing "serious" impairment in social and occupational functioning. Such symptomatology would support the assignment of a 50 percent evaluation under the General Rating Formula. See 38 C.F.R. § 4.130. However, the report also notes agreement with a previous physician's findings that the Veteran's symptoms were in partial remission with his current medication and management of his stressors. With respect to the June 2007 examination, assuming arguendo that it represents an increase in the Veteran's psychiatric symptomatology, the Board observes it lies nearly two years following the September 2005 reduction action on appeal. Therefore, it does not serve as a basis for a determination that the Veteran's psychiatric disability had not undergone a sustained improvement at the time of the September 2005 decision to reduce the assigned disability evaluation. Furthermore, the Board observes the June 2007 mental health examination is a significant outlier and inconsistent with contemporaneous treatment records, even those authored by the same treatment provider. For instance, a treatment record dated June 22, 2007, ten days following the June 2007 mental health examination and authored by the same provider, A.C., DSW, indicates the Veteran's ongoing diagnosis was changed from adjustment disorder with depressed mood in May 2007 to major depression in full remission (emphasis added). Further, by December 2007, A.C. determined that the Veteran remained successfully stable with good adjustment and had made significant improvements so as not to warrant ongoing outpatient psychotherapy. As such, even considering the June 2007 mental health examination purporting to indicate serious symptomatology, the Board finds the preponderance of the evidence remains in favor of a finding that the Veteran's psychiatric disability had undergone a sustained improvement. In sum, the competent evidence of record indicates the Veteran's dysthymia, alternately diagnosed as major depressive disorder, has undergone sustained improvement since a May 2001 decision to increase the assigned disability evaluation. The evidence does not demonstrate that the Veteran's disability manifests symptomatology of such severity as to more closely approximate a 50 percent evaluation under the General Rating Formula. As such, the Board finds that the preponderance of the evidence at the time of the September 2005 rating decision shows the RO's reduction, effective December 1, 2005, was warranted. Therefore, the benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.344 (2012). ORDER The reduction in the evaluation of the Veteran's dysthymia from 50 percent to 30 percent being proper, the appeal is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs