Citation Nr: 18149003 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-36 987 DATE: November 8, 2018 ORDER The reduction in rating for depression, from 50 to 30 percent effective July 18, 2014, was proper. Entitlement to a rating in excess of 50 percent prior July 18, 2014, and in excess of 30 percent thereafter, for depression is denied. REMANDED The issue of entitlement to service connection for bilateral hearing loss is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to a rating in excess of 50 percent for chronic headaches is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An August 2014 rating decision met all due process requirements to reduce the rating for the service-connected depression from 50 to 30 percent effective July 18, 2014. 2. Prior to July 18, 2014, the Veteran’s depression symptoms more closely approximated occupational and social impairment with reduced reliability and productivity. 3. Following July 18, 2014, the Veteran’s depression symptoms more closely approximated 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). CONCLUSIONS OF LAW 1. The reduction in rating for depression, from 50 to 30 percent effective July 18, 2014, was proper, and restoration of a rating in excess of 30 percent from July 18, 2014 is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105, 4.130 Diagnostic Code 9434 (2018). 2. The criteria for a rating in excess of 50 percent prior July 18, 2014, and in excess of 30 percent thereafter, for depression, is denied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Whether the reduction in rating for depression, from 50 to 30 percent effective July 18, 2014, was proper. The Veteran contends that the RO’s August 2014 decision to reduce the disability rating assigned for depression – from 50 to 30 percent effective July 18, 2014 – was improper. The Board must determine whether the rating reduction was proper before it can address whether an increased rating has been warranted here. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The Veteran’s representative contends that the rating reduction here was not proper because VA did not provide the Veteran and his counsel proper notice regarding the proposed reduction, as required by 38 C.F.R. §3.105(e). The Board notes that where a reduction in a rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The notice provisions of 38 C.F.R. § 3.105 (e) only apply when the compensation being paid to a claimant is reduced. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed.Cir.2007); see also 38 U.S.C. § 5112 (b)(6) (2007). Prior to the RO’s reduction of the Veteran’s depression disability rating, the Veteran was in receipt of a combined disability evaluation of 80 percent, effective from August 4, 2010. The Board finds that the RO’s action did not result in an overall decrease in disability compensation being paid to the Veteran, as his combined rating remained at 80 percent despite the reduction in rating for depression. Stelzel clearly held that compliance with the notice procedures set forth in 38 C.F.R. § 3.105 (e) is not required unless the disability compensation payment level was reduced. Stelzel, supra. Accordingly, because the reduction here did not result in a reduction of compensation paid, the provisions of 38 C.F.R. § 3.105 (e) do not apply. Entitlement to a rating in excess of 50 percent prior July 18, 2014, and in excess of 30 percent thereafter, for depression. With regard to the Veteran’s increased rating claim, the Veteran’s depression is rated under DC 9434 of 38 C.F.R. § 4.130. DC 9434 is governed by the General Rating Formula for Mental Disorders, which provides that a 50 percent evaluation is warranted for 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. Id. A 70 percent rating is warranted for 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See Id. The evidence in this matter consists of lay statements, VA treatment records, and VA examination reports. In a September 2012 VA treatment note, the Veteran indicated that he did not feel that his depression needed treatment. He also indicated that he had never had a suicidal attempt. Various VA treatment notes indicate that the Veteran was prescribed medication for his depression. In a June 2014 VA report, the examiner diagnosed Major Depressive Disorder and found occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The report noted the Veteran’s good relationships with family members and with friends, with whom he socializes on occasion and that he “pulls back into [himself]” about once per week. No suicidal or homicidal ideations were indicated. The report noted him as appearing casually dressed with good hygiene and normal speech and affect with normal thought processes. The only symptom noted by the examiner was depressed mood with no functional impairment. A July 2017 VA Primary Care treatment note indicates that the Veteran stated he was “depressed” but not suicidal or homicidal and refused a referral for mental health treatment. And an October 2017 VA mental health note indicates the Veteran was not a danger to himself or others and had no current urgent mental health care needs. Based on the foregoing evidence of record, the Board finds that a higher disability rating is not warranted at any point in the appeal period. Indeed, the evidence of record indicates that the criteria for a 70 percent rating was not approximated prior to July 18, 2014. The evidence does not indicate 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. In fact, evidence during this period indicates that at worst, the Veteran was prescribed medication for his depression and by his own account, didn’t think that his depression needed service. Following July 18, 2014, the evidence of record indicates that the criteria for a 50 percent rating was not approximated. The evidence does not indicate a 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. Indeed, the July 2014 report indicated that the Veteran’s only symptom was depressed mood with no functional impairment and the Veteran himself indicated good relationships with family and friends. This level of impairment warrants the currently-assigned 30 percent rating. For the reasons noted above, a higher rating for the entire appeal period is not warranted for the Veteran. REASONS FOR REMAND The issue of entitlement to service connection for bilateral hearing loss disability is remanded. The issue of entitlement to service connection for tinnitus is remanded. A VA compensation examination should be provided to the Veteran on remand. The evidence indicates that he has current hearing loss disability and tinnitus, and indicates that he was exposed to acoustic trauma during service (see e.g., DD Form 214 noting military occupational specialty of Pavement Maintenance Specialist). The issue of entitlement to a rating in excess of 50 percent for chronic headaches is remanded. With regard to the Veteran’s chronic headaches claim, the Board notes that the Veteran’s last examination for his chronic headaches occurred in July 2014. In addition, the evidence of record, particularly February 2018 correspondence, indicates worsening symptomatology. Therefore, the Veteran should be afforded another VA examination to determine the current severity of his service-connected chronic headaches. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Entitlement to total disability based on individual unemployability (TDIU) is remanded. The TDIU claim is intertwined with the preceding issues on remand so it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Include in the claims file any outstanding VA treatment records. 2. Schedule an examination to determine the nature and etiology of bilateral hearing loss and tinnitus. The examiner should review the claims file and then answer the following questions: (a). Does the Veteran have a current tinnitus disorder? Does he have a hearing loss disability under 38 C.F.R. § 3.385 (2018)? (b). If so, is it at least as likely as not (i.e., probability of 50 percent or greater) that both or either disorder relates to an in-service injury, event, or disease, including the Veteran’s contention that his tinnitus is related to acoustic engine exposure during active service. 3. Schedule an examination to determine the severity of chronic headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to chronic headaches alone and discuss the effect of the Veteran’s chronic headaches on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   4. Readjudicate the claims on appeal to include the TDIU claim. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel