Citation Nr: 1332174 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 13-11 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the reduction from a 100 percent rating to a 50 percent rating, effective June 1, 2012, for schizoaffective disorder was proper. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his nephew ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active duty service from August 1954 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a March 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which reduced the Veteran's disability rating for schizoaffective disorder from 100 percent to 50 percent disabling. In August 2013, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) for a person hearing, via videoconferencing equipment. A transcript of the proceedings has been associated with the Veteran's "Virtual VA" paperless claims file. Further review of the Virtual VA does not reveal additional documents that are pertinent to the appeal. FINDINGS OF FACT 1. A rating decision dated September 10, 1998, raised the Veteran's schizoaffective disorder from a disability rating of 50 percent to 100 percent, effective January 2, 1998. 2. A rating decision dated March 13, 2012, reduced the disability rating for service-connected schizoaffective disorder from 100 percent to 50 percent, effective June 1, 2012. 3. The Veteran's 100 percent rating had been in place for more than five years. 4. The evidence does not show a material improvement in the Veteran's impairments, and any minor improvement is not reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction in the rating assigned for schizoaffective disorder, from 100 percent to 50 percent, was not proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.343, 3.344, 4.1, 4.15, 4.13, Diagnostic Code 9411 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), as amended, and its implementing regulations impose obligations on VA to provide claimants with notice and assistance in developing claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is restoring the Veteran's 100 percent rating for schizoaffective disorder, there is no need for further discussion of the VCAA. This represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. The disability rating assigned to a service-connected disability may be reduced when such is warranted by the evidence, but only after following certain procedural guidelines as provided in 38 C.F.R. §§ 3.105(e), 3.343 and 3.344. The Veteran has been service-connected for schizoaffective disorder since 1959, with a 100 percent disability rating in effect since January 2, 1998, that was reduced to 50 percent effective June 1, 2012. Section 3.105(e) applies to ratings that have been in place for less than five years, and so is inapplicable here. As the Veteran had a total disability rating for more than five years, the requirements of both 38 C.F.R. § 3.343 and 3.344(a) and (b) apply in the present appeal. Under 38 C.F.R. § 3.343, a total disability rating will not be reduced without examination showing material improvement in physical or mental condition. This section does not apply to total disability ratings in effect for hospital treatment or convalescence, or for total disability ratings based upon individual unemployability. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the Veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work. 38 C.F.R. § 3.343(a). When a rating has been in effect for at least five years, the provisions of 38 C.F.R. § 3.344(a) and (b) must also be followed. These provisions require that a rating reduction be based on an examination that is as complete as the examination or examinations that formed the basis for the original rating, and that it be reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Further, ratings of disabilities that are subject to episodic or temporary improvement will not be reduced on the basis of one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. 38 C.F.R. § 3.344(a). The Veteran asserts that his rating should not have been reduced because his symptoms have not improved. Because this case involves the reduction of his rating, the question is not whether the Veteran meets the criteria for a 100 percent disability rating for schizoaffective disorder, but rather, whether the reduction from 100 percent to 50 percent was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). VA must establish by a preponderance of the evidence that the rating reduction was warranted. Brown v. Brown, 5 Vet. App. 413, 421 (1993). The record reflects that the Veteran attended a VA examination in July 1998, which led to the assignment of his 100 percent rating. At the examination, the Veteran explained he began having trouble with his "nerves" shortly after separation from service in 1957. He said that he was hospitalized in 1995 for alcohol abuse, and reported that he had been sober since that hospitalization. He said that he felt he was doing better since stopping drinking, but that he still had significant difficulty with his nerves. The Veteran had trouble communicating, and it was difficult for him to explain what symptoms were troubling him. The examiner noted the Veteran was obviously feeling extremely anxious, but the Veteran was unable to explain the source of his anxiety. He spoke in vague and halting terms about his distress. He did say that he has depression, trouble sleeping, loss of energy, low self-esteem, and passive suicidal ideation. He denied having hallucinations. He complained of having memory problems for the preceding two years. During the examination, the Veteran said he had worked as a truck driver, but his license was revoked due to driving while intoxicated in 1994. At the time of the examination, he was performing unskilled manual labor when he could find it. He was unable to estimate the amount of time lost from work due to his symptoms. He was also unable to provide an estimate on the frequency, severity, and duration of his psychiatric symptoms, or to comment on the length of any remissions. The examiner opined that it was doubtful the Veteran had any remissions in the recent past, and instead opined that his symptoms were likely present on a daily basis. The Veteran appeared for the examination clean and well-kempt. He showed random purposeless movements that were attributed to anxiety, and the examiner opined the Veteran was feeling non-delusional paranoia. The Veteran denied hallucinations and suicidal ideation. His mood and affect were consistent with depression. His speech was halting and disrupted, consistent with anxiety. His immediate retention and recall were partially impaired, but his ability to think abstractly was intact. Recent memory showed significant impairment. Situational judgment was intact, and he showed no evidence of impaired impulse control. He showed no evidence of ritualistic behaviors. He was roughly oriented to time, place, person, and situation. He could not perform simple arithmetic. At that July 1998 VA examination, the Veteran was diagnosed with schizoaffective disorder by history, rule out dementia, and chemical dependency by history not currently active. His GAF was 40. At the October 2011 VA examination, the Veteran was diagnosed with schizoaffective disorder, alcohol dependency, and mild cognitive impairment. He was assigned a GAF of 60. The examiner opined that the Veteran's symptoms of anxiety and depression could be attributed to his schizoaffective disorder. His mild memory impairment was attributed to his alcohol dependency, and possibly his coronary artery disease. The examiner further opined the Veteran had occupational and social impairment due to mild or transient symptoms, which decrease efficiency and ability to perform tasks only during periods of significant stress, and that the Veteran's symptoms were controlled by medication. During the October 2011 examination, the Veteran reported that he had been married five times, but was unsure of the status of his last marriage, as he had not seen that wife in over ten years. He said that he had a caretaker that helped with his activities of daily living, but felt that he could do most of them himself, except they would take more time. He then indicated that he would not be able to properly care for himself, and that he would likely go to a nursing home if he did not have help. The examiner noted he was then taking Trazadone and Sertraline, and had been prescribed the Sertraline since at least 1998. The Veteran reported that he was drinking "here and there," but denied recent intoxication. The examiner noted the Veteran's memory loss as mild, and that he was able to remember who his football team was playing in the upcoming weekend, but forgot who they played the previous weekend. He was able to repeat back 3 out of 3 items, but only recalled 1 out of 3. He transposed two numbers from his Social Security number. He said he sometimes forgets to pay a bill. He denied ever having psychotic symptoms. The Veteran reported that he sometimes gets depressed and rarely cries to himself. The examiner observed no psychotic symptoms, and indicated the Veteran's mood was stable, and his affect was appropriate to his mood. The examiner only noted some minor cognitive impairment. At a July 2013 therapy session, the Veteran reported that he was able to sleep while on his medication, but he did not feel rested upon waking. His caregiver reported that he talks and fights in his sleep. His caregiver also reported that he was restless, irritable, low energy, worrying excessively, and having problems with his short-term memory. He mentioned that he was not drinking. He denied suicidal ideations, and was noted to not be "overtly" psychotic. He showed characteristics of purposelessness, anxiety, withdrawal, and anger, which led his social worker to assess his suicide risk as moderate. During the examination, he was appropriately dressed and cooperative. His speech was low, slow, and monotonous. His GAF was 45. At an August 26, 2013, therapy session, the Veteran reported that he felt "alright sometimes, but at other times [he] gets so mad at [himself]." He said he felt sad at times and wanted to cry, but realized that crying would not help anything. He said that he cannot sleep with his prescribed medications, Trazadone and Sertraline. He reported decreased energy and an inability to feel pleasure. He reported having many thoughts but not feeling confused. He denied hearing voices or having visions, and did not think that people were out to get him. His suicide risk was assessed as moderate. His reported goals included obtaining medication that does not make him "feel like a zombie" and "to be able to smile [and] be friendly with everybody." His GAF was 45. The following day, August 27, 2013, the Veteran asked his therapist for written statement regarding his condition. The therapist indicated that the Veteran suffers from chronic mental illness and has not had gainful employment in over 30 years, due to his anxiety, depression, and inability to deal with stress. He was easily agitated and emotionally labile. He was noted to have had a drinking problem for a number of years, which his therapist attributed to an effort to cope with his mental health symptoms. It was noted he had had several hospitalizations due to his drinking. His GAF was 45. In September 24, 2013, addendum to a May 2013 note, which is not located in the file in its entirety, the Veteran's treating therapist noted he was compliant with his treatment but seeing minimal improvement. The Veteran's mental illness was characterized as chronic, with full remission not expected. He experiences severe emotional, cognitive, and social impairment on a daily basis, due to his persistent depression and anxiety, impaired concentration, and the inability to deal with stress or changes in his routine. He was noted to have not had steady employment in over 30 years due to his mental illness. The physician opined that the Veteran is totally disabled and unable to perform full-time or sedentary employment due to his schizoaffective disorder. Based on the foregoing, the Board does not find that the rating reduction was proper. The rating reduction was based on one examination, the October 2011 VA examination. The Veteran's diagnosis, schizoaffective disorder, is subject to temporary or episodic improvement, thus it was improper to base his reduction on this one examination. Johns v. Derwinski, 2 Vet. App. 346, 349 (1992) ("Read together § 3.343(a) and § 3.344(a) & (c) provide that, unless all the evidence of record establishes that a claimant's condition has undergone sustained material improvement, a total disability rating that has existed for five years or more may not be reduced on any one examination."); see also Lehman v. Derwinski, 1 Vet. App. 339, 341-42 (1991); Karnas v. Derwinski, 1 Vet. App. 308, 313-14 (1991). The evidence as a whole does not reflect a material improvement in the Veteran's impairment or his symptoms. The Veteran was assigned a GAF of 40 at the July 1998 examination. While the October 2011 VA examiner assigned a GAF of 60, the Veteran's current therapist continues to assign a lower GAF of 45. In 1998, the Veteran complained of trouble sleeping; in July 2013, he said this continues to trouble him. Sleeping was not commented on in the October 2011 VA examination. In 1998, he was assessed as having extreme anxiety; in August and September 2013, his anxiety remained a persistent symptom, which also reduced his ability to handle stress or changes in his routine. The October 2011 VA examination did not discuss the Veteran's reactions to his symptoms, and whether they were appropriate. In August 2013, he was assessed as a moderate risk for self-harm. In short, the Veteran's treating therapist has characterized the Veteran's disability as chronic with severe symptoms, and opined that he would not be able to work due to the symptoms of his disorder. The October 2011 examination does show some minor improvement, in that the Veteran reported less frequent depression, less severe reactions to his depression, and the examiner did not comment on the severity of the Veteran's anxiety. The Board observes that, at the time of that examination, the Veteran had a live-in caretaker, and had not had gainful employment in decades. Further, his nephew testified in August 2013 that the Veteran lives close to family members that provide him with emotional support. It is under these circumstances that he did show some improvement; but, these are not the ordinary conditions of life, as set forth in 38 C.F.R. § 3.344. The evidence does not show that the Veteran would be able to maintain any sort of improvement if his situation was different; indeed, his therapeutic treatment records from 2013 show that his symptoms are about as severe as when we was assigned a 100 percent disability rating. The Veteran's symptoms do not show material improvement, and his minor improvement, shown in October 2011, is not reasonably certain to be maintained under the ordinary conditions of life. Accordingly, the rating reduction does not comply with the requirements of 38 C.F.R. §§ 3.343 and 3.344. As such, this rating was void ab initio, and the rating is restored. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (where VA reduces a disability rating without observing applicable regulation, such a rating reduction is void ab initio, and will be set aside). ORDER The reduction of the rating from 100 percent to 50 percent was not proper; the 100 percent rating is restored and the appeal is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs