Citation Nr: 1631977 Decision Date: 08/11/16 Archive Date: 08/23/16 DOCKET NO. 13-27 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether the reduction of the evaluation for major depressive disorder with dementia, from 100 percent to 50 percent effective April 1, 2013, was proper. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from March 1961 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2016. A transcript of that hearing is of record. FINDING OF FACT 1. The reduced rating for service-connected major depressive disorder with dementia, effectuated by the RO in January 2013, was based on a review of the medical evidence of record and an independent medical opinion obtained by the RO in October 2012; the record does not demonstrate that the Veteran underwent reexamination showing improvement of his psychiatric symptoms. 2. The RO did not make a finding of clear error in the rating decision which had assigned the 100 percent rating. CONCLUSION OF LAW The decision to reduce the evaluation for service-connected major depressive disorder with dementia from 100 percent to 50 percent is void. 38 U.S.C.A. §§ 1155 (West 2002, 2014); 38 C.F.R. §§ 3.343, 3.344, 4.126 Diagnostic Code (DC) 9434 (2012, 2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that the January 2013 rating decision which reduced the evaluation of his service-connected major depressive disorder (MDD) with dementia was improper. In a July 2012 rating decision, the RO granted the Veteran's claim for service connection for acquired psychiatric disorder and assigned a 100 percent disability rating effective June 11, 2012, in part based on a June 2012 QTC examination report stating an opinion that the Veteran's psychiatric symptoms resulted in total social and occupational impairment. The July 2012 decision also proposed a finding that the Veteran was incompetent to handle disbursement of funds, to which the Veteran objected. The RO forwarded the Veteran's claims file to a physician for an independent medical opinion on the question of competency in October 2012. After reviewing and discussing the evidence of record, but not personally examining the Veteran, the physician provided an opinion that the Veteran was competent to handle his financial affairs, and additionally, that the Veteran's symptoms were best described as resulting in occupational and social impairment with reduced reliability and productivity. The RO issued a decision in October 2012 proposing to reduce the disability rating for MDD with dementia from 100 percent to 50 percent, and a decision in January 2013 reducing the disability rating as previously proposed. A Veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C.A. § 1155; 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288 (1999). Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see also Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such review requires VA to 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, it must be determined not only that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). The Board recognizes that the Veteran's 100 percent disability rating for MDD with dementia was in effect from June 2012 to April 2013, a period of less than five years. As such, the specific protocols for reducing protected ratings are inapplicable to his claim. See 38 C.F.R. § 3.344(a), (b) (directing that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction of a disability rating that has been in effect for five or more years); see also Brown v. Brown, 5 Vet. App. 413, 417-18 (1995). Instead, the Veteran's claim is governed by 38 C.F.R. § 3.344(c), which applies to disabilities that are likely to improve (i.e., those with ratings in effect for five years or less). In such instances, "[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating." 38 C.F.R. § 3.344(c). Based upon a review of the entire recorded history of the condition, including the reexamination report(s), a reduction in rating requires a showing that an improvement in the service-connected disability has actually occurred and that such improvement actually reflects an improvement in the claimant's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421 (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, and 4.13); 38 C.F.R. § 3.344(c). Under 38 C.F.R. § 3.343(a) for total disability ratings, when warranted by the severity of the condition, will not be reduced, in the absence of clear error, without examination showing material improvement in the condition. 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, and, if the latter, reduction from total disability ratings will not be considered pending re-examination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343. Where a rating reduction was made without observance of law, the reduction must be vacated and the prior rating restored. Schafrath, 1 Vet. App. at 595. 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 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the RO's reduction was warranted. See Brown, 5 Vet. App. at 420-421; Kitchens v. Brown, 7 Vet. App. 320 (1995). Although the Veteran's 100 percent disability rating for MDD with dementia was in effect for fewer than five years, therefore rendering the additional protections of 38 C.F.R. § 3.344(a) and (b) inapplicable, 38 C.F.R. § 3.343 and 3.344(c) nevertheless requires that a rating reduction under such circumstances involve reexamination disclosing improvement. As the January 2013 rating decision reducing the disability rating in this case relied upon an independent medical opinion solely based upon a review of the record, rather than an in-person reexamination of the Veteran in addition to review of the evidence of record, the rating reduction was made without observance of law, and the reduction must be vacated; restoration of the prior 100 percent disability rating is warranted. See Schafrath, 1 Vet. App. at 595. ORDER The reduction of the evaluation for major depressive disorder with dementia, from 100 percent to 50 percent effective April 1, 2013, was improper; the 100 percent evaluation is restored, effective April 1, 2013. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs