Citation Nr: 1621454 Decision Date: 05/27/16 Archive Date: 06/08/16 DOCKET NO. 13-30 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether the reduction of the disability rating assigned for the Veteran's mood disorder and sleep disorder due to general medical conditions with depressive features (mood disorder) from 50 percent to 30 percent, effective May 1, 2014, was proper. 2. Entitlement to an increased evaluation for service-connected mood disorder, currently evaluated as 50 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: John Berry, Attorney ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty for training from May 2004 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains an October 2013 mental disorder examination report. Otherwise, Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. Although the Veteran has perfected an appeal of 12 other issues, they are not yet certified to the Board and it appears they are still being worked by the RO. Accordingly, they are not before the Board and are not addressed herein. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The reduction in the evaluation for mood disorder was not based on evidence that showed actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the evaluation for the Veteran's mood disorder from 50 percent to 30 percent, effective May 1, 2014, was improper; the 50 percent evaluation is restored. 38 U.S.C.A. § 5112 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.343, 3.344(c), 4.130, Diagnostic Code 9435 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Where reduction in the evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction of current compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105(e) (2015). The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level. 38 C.F.R. § 3.105(e). The beneficiary will also be informed that he or she will have an opportunity for a predetermination hearing. 38 C.F.R. § 3.105(i) (2015). On review, it appears that the RO complied with the procedural requirements of 38 C.F.R. § 3.105(e) in a March 2013 letter, and the Veteran does not contend otherwise. In a February 2013 rating decision, the Veteran was notified of the proposed reduction and given an opportunity to submit additional evidence and/or request a hearing. In a February 2014 rating decision, the reduction was made effective May 1, 2014, which is the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105(e) (2015). Accordingly, the Board finds that the RO complied with the procedural requirements for a rating reduction. Having concluded that the RO correctly followed the necessary procedures to reduce the 50 percent rating, the Board must consider whether a reduction from 50 percent to 30 percent was correct based on the evidence of record. For ratings that had been in effect for 5 years or more, VA regulations contain certain protections in order to provide for the stabilization of assigned disability evaluations. 38 C.F.R. § 3.344(a)-(c). In this case, a 50 percent evaluation was assigned, effective August 8, 2012. The evaluation was reduced to 30 percent, effective May 1, 2014. As such, the evaluation was in effect less than 5 years and these regulations are inapplicable. Regardless of whether the five-year threshold is met, however, a VA rating reduction must be based upon review of the entire history of the veteran's disability, reconciling any contrary findings into a consistent picture. See 38 C.F.R. § 4.2. VA must then consider whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. 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. See Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). To warrant reduction in rating, it must be shown that the preponderance of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) as required. See Brown, 5 Vet. App. at 420-21; Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. The Veteran's mood disorder and sleep disorder with associated depression is rated under Diagnostic Code 9435, which is evaluated under the general rating formula used to rate psychiatric disabilities pursuant to 38 C.F.R. § 4.130. Under that formula, a 30 percent disability rating is warranted when 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-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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 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 maintain effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9435. GAF (Global Assessment of Functioning) scores are also used to evaluated the severity of service-connected psychiatric disorders and consist of a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). A GAF of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). An examiner's classification of the level of psychiatric impairment by a GAF score is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. The Veteran's 50 percent evaluation was based on a September 2012 VA mental disorder examination. At that time, the diagnosis was mood disorder due to a general medical condition, with depressive features. The examiner assigned a GAF score of 50, and noted that the Veteran's psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After a clinical interview and examination, the examiner found the Veteran's psychiatric disorder resulted in a depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On mental status examination, the Veteran's attention and concentration were intact. The Veteran reported her mood was generally depressed and anxious on occasion. She also reported anger. Insight and judgment were intact. The Veteran would fall asleep quickly, but she would awaken six to eight times per night on average. However, the Veteran reported waking up due to her pain due to her physical disabilities. She was able to interpret a proverb. Her memory for remote, recent, and immediate events was intact. The Veteran also submitted various statements describing the impact of her physical disabilities and the resulting depression. The RO assigned a 50 percent disability rating, effective August 8, 2012, in a November 2012 rating decision. VA afforded the Veteran a mental disorder examination in February 2013. At that time, the same examiner who provided the September 2012 examination affirmed the diagnosis of mood disorder due to a general medical condition, with depressive features. This time, however, the examiner assigned a GAF score of 60. The examiner indicated the Veteran's psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The clinical interview and examination revealed depressed mood and chronic sleep impairment. The examiner found no other symptoms present. During the clinical interview, the Veteran described recently marrying her spouse, who accompanied her to the examination. The Veteran had four children, had contact with her extended family, and occasionally attended social events, which required prompting from her spouse. The Veteran reported that she spends her time in her bedroom, watching television and reading. A mental status examination revealed that the Veteran was soft spoken, cooperative, and answered questions in a straightforward manner, frequently interjecting additional information. She was oriented to all spheres, and her attention and concentration were intact. She described her mood as feeling worthless and depressed. She would be happy sometimes, but her mood would be bad sometimes when her children come into her bedroom and play. She reported being tired constantly and that she was able to fall asleep. However, she was unable to stay asleep for long. The Veteran could interpret a proverb. Her memory for remote, recent, and immediate events was intact. Based on this examination, the RO proposed reducing the Veteran's evaluation from 50 to 30 percent. The Veteran submitted her notice of disagreement in April 2013. In it, through her representative, the Veteran contended she had depression that affected her ability to function, resulting decreased participation in social and family activities, the desire to eat properly, sad mood, memory difficulties, irritability, and a lack of motivation. The Veteran also submitted a March 2013 statement wherein she described having suicidal ideation. The Veteran reported that the February 2013 VA examiner did not inquire about suicidal ideation. Because of the Veteran's disagreement with the findings of the February 2013 examination, VA afforded the Veteran another mental disorder examination in October 2013. At that time, the same examiner who provided the February 2013 and September 2012 examinations affirmed the diagnosis of mood disorder due to general medical condition, with depressive features, and assigned a GAF score of 60. The examiner indicated the Veteran's psychiatric condition resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The clinical interview and examination revealed depressed mood, chronic sleep impairment, and anxiety. A mental status examination showed that the Veteran was reserved, soft spoken, cooperative, pleasant, smiled easily, and answered questions in a straightforward manner. The examiner noted that the Veteran had a tendency to exaggerate her symptoms. She was oriented to all spheres, and her attention and concentration were intact. The Veteran described her mood as depressed with growing anxiety. Getting into a car would frequently stress her out. She also reported constant anger. She reported the same sleep difficulties as her February 2013 examination. The Veteran was able to interpret a proverb. Her memory for remote, recent, and immediate events was intact. The examiner noted that, although the Veteran reported subjective mental health symptoms, such as suicidal ideation, those symptoms did not rise to the level of chronicity required to constitute symptoms of the Veteran's mood disorder. After a thorough review of the record, the Board finds that the Veteran's psychiatric disorder did not show actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Although the February and October 2013 VA examinations found improved symptoms, to include a GAF score of 60 rather than 50, the examiner reached the conclusion that these improved symptoms still caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. This was the same effect on social and occupational impairment of the more pronounced symptoms as found in September 2012. Accordingly, and resolving all doubt in favor of the Veteran, the reduction was improper and the 50 percent evaluation is restored. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The reduction of the Veteran's evaluation for mood disorder and sleep disorder due to general medical conditions, with depressive features, from 50 percent to 30 percent, effective May 1, 2014, was improper; the 50 percent evaluation is restored. REMAND Remand is required regarding the Veteran's claim for an increased evaluation. Although the 50 percent evaluation is restored, the Veteran filed a claim for increase in August 2012. Because the RO determined that the evaluation should be reduced, the claim for an increased evaluation was never adjudicated. This must be done on remand. Remand is also required regarding TDIU. The Veteran asserts that she is unable to secure or follow substantially gainful employment due to the combination of her service-connected disabilities. In February 2013, an examiner found that the Veteran's orthopedic disabilities caused difficulty with bending, lifting, twisting, prolonged weightbearing, climbing, crawling, or carrying, as well as overhead lifting or reaching, or activity against resistance involving the right upper extremity and shoulder. In a separate examination, a psychiatric examiner opined that the Veteran's mood disorder with depressive features, in and of itself, does not render her unable to secure and maintain substantially gainful employment. The Board finds that the record is inadequate for adjudication purposes as there is no examination or opinion that considers the collective impact of the Veteran's service-connected disabilities on her occupational functioning. When readjudicating the claim, the RO should determine whether referral for extraschedular determination is warranted for that period. 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected psychiatric disorder. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the relevant Disability Benefits Questionnaire (DBQ). 4. After all additional records are associated with the claims file and the psychiatric DBQ is completed and of record, a social and industrial survey must be obtained to ascertain the Veteran's social interactions and work or work-like functioning in recent years. The evidence of record must be made available to and reviewed by the individual conducting the survey. The examiner must comment on the Veteran's day-to-day functioning and the degree of social and industrial impairment that the Veteran experiences as a result of her service-connected disabilities. The surveyor should consider the Veteran's education and occupational experience, irrespective of age and any nonservice-connected disorders. The Veteran is service-connected for mood disorder, right shoulder tendonitis and bursitis, left knee musculoligamentous strain, right ankle musculoligamentous strain, bilateral sacroiliac joint dysfunction, chronic constipation, right lower extremity radiculopathy, and hemorrhoids. The surveyor must address the functional effects of each of the service-connected disabilities, in conjunction, so that the Board may make a determination of unemployability. The surveyor is not limited to the foregoing instructions, and may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. 5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Review each examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs