Citation Nr: 18141172 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 18-03 390 DATE: October 9, 2018 ORDER Subject to the laws and regulations governing payment of monetary benefits, the 70 percent rating for service-connected unspecified anxiety disorder; unspecified depressive disorder, mild (previously rated as anxiety disorder) (also claimed as depression and adjustment disorder) is restored, effective August 1, 2017. Subject to the law and regulations governing payment of monetary benefits, an award of a TDIU is granted. FINDINGS OF FACT 1. A May 2017 rating decision reduced the 70 percent rating for unspecified anxiety disorder; unspecified depressive disorder to 50 percent disabling, effective August 1, 2017. 2. The evidence received at the time of the May 2017 rating decision did not demonstrate a material improvement of the Veteran’s unspecified anxiety disorder; unspecified depressive disorder, mild, that was reasonably certain to be maintained under the ordinary conditions of life. 3. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The reduction of the rating for unspecified anxiety disorder; unspecified depressive disorder, mild from 70 percent to 50 percent, effective August 1, 2017, was improper; the criteria for restoration of the 70 percent rating have been met. 38 U.S.C. §§ 1101, 1155, 5103, 5103A, 5107, 5112 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1-4.14, 4.130, Diagnostic Code 9413 (2017). 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 2003 to November 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 1. Whether the reduction of the disability rating for service-connected unspecified anxiety disorder; unspecified depressive disorder, mild (previously rated as anxiety disorder) (also claimed as depression and adjustment disorder) from 70 percent disabling, effective May 9, 2011, was proper. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, based upon a 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. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that 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 in a disability has actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. 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. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82. However, post-reduction evidence may not be used to justify an improper reduction. In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Where, as here, a disability rating has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R.§ 3.344 (a) and (b). Under 38 C.F.R. § 3.344 (a) and (b), only evidence of sustained material improvement that is reasonably certain to be maintained, as shown by full and complete examinations, can justify a reduction. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Propriety of a Reduction of a 70 Percent Rating for an Unspecified Anxiety Disorder A February 2011 rating decision granted the Veteran service connection for anxiety disorder with an evaluation of 10 percent, effective November 10, 2009. In an April 2014 rating decision, the RO assigned a 70 percent disability rating was assigned for the Veteran’s anxiety disorder, effective September 18, 2013. In November 2016, the RO proposed decreasing the evaluation of the unspecified anxiety disorder; unspecified depressive disorder, mild from 70 percent to 50 percent. In a May 2017 rating decision, the RO finalized the proposal to decrease the evaluation of the unspecified anxiety disorder, and decrease the rating from 70 percent to 50 percent, effective August 1, 2017. While the Veteran’s VA treatment records indicate some improvement in the Veteran’s psychiatric symptoms, the Board finds that the total evidence of record does not reflect an actual change has occurred in the Veteran’s disability; therefore, the reduction from 70 percent was improper and restoration is warranted. The Veteran’s unspecified anxiety disorder with mixed anxiety; unspecified depressive disorder, mild, is rated under Diagnostic Code 9413 and utilizes the General Rating Formula for Mental Disorders (General Rating Formula), which is used to assign ratings ranging between 0 and 100 percent. Under the General Rating Formula, a 50 percent evaluation contemplates 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 maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 70 percent rating is assigned when a psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id The frequency, severity, and duration of the Veteran’s impairment to assess his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports a 70 percent disability rating for the Veteran’s unspecified anxiety disorder throughout the appeal period. The record shows that for the relevant part of the appeal period, the Veteran PTSD symptomatology included suicidal thoughts. The Veteran reported suicidal ideation at his October 2016 psychiatric examination. The Veteran’s October 2016 treatment records reflect the Veteran has periods of depression that have resolved and recurred multiple times since. During his October 2016 psychiatric examination, the Veteran described his anxiety as elevated and tired, and acknowledged being depressed. Significantly, he admitted suicidal ideation in the last 3-4 months. The Veteran was prescribed antidepressants to treat “feeling down in the dumps”, anxiety, and lack of energy. See September 2016 Psychiatric Notes. The Veteran underwent VA psychiatric evaluations in October 2016 and September 2015. In September 2015, the Veteran was diagnosed with unspecified anxiety disorder, and unspecified depressive disorder. The VA examiner opined that the Veteran’s psychiatric disorder caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during periods of significant stress, or; symptoms controlled by medication. During the examination, the Veteran reported that he has feeling of depression that can last from 8-12 hours. He described feelings of hopelessness and at times has feelings of worthlessness. Additionally, he reported a loss of interest in his usual activities that began in 2012 or 2013. He described a loss of energy and reported suicidal ideation a week prior. See September 2015 VA examination. Additionally, in August 2017, the Veteran reported that he was unable to work due in part to his service-connected psychiatric disability. See August 2017 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Upon review of the record, the Board finds that the evidence does not reflect an actual change has improved under the ordinary conditions of life and work in the Veteran’s disability; therefore, the Board finds that the reduction from 70 percent was improper. Considering the Veteran’s reports of suicidal ideation and recurrent feelings of hopelessness and worthlessness, the Board finds that the evidence of record does not demonstrate an actual sustained material improvement has occurred related to the Veteran’s disability in his daily life. After resolving the benefit of the doubt in favor of the Veteran, the Board finds that the reduction of the Veteran’s service-connected unspecified anxiety disorder; unspecified depressive disorder, mild (previously rated as anxiety disorder) (also claimed as depression and adjustment disorder) was not proper, and restoration of his 70 percent rating is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. On the Veteran’s VA 21-8940, Application for Increased Compensation Based on Unemployability, received in August 2017, the Veteran contends that his service-connected disabilities prevent him from securing or following a substantially gainful employment. A TDIU may be assigned where the schedular rating is less than total if a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran’s psychiatric disability is rated as 70 percent disabling and his bilateral foot disability is rated as 50 percent disabling and his tinnitus is rated as 10 percent disabling, resulting in a combined schedular evaluation of 90 percent and thus satisfy the criteria set forth in 38 C.F.R. § 4.16(a). Based on a review of the evidence, and in light of the Veteran’s education, training and work experience, the Board finds that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, a TDIU, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel