Citation Nr: 18151310 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-49 694 DATE: November 16, 2018 ORDER The reduction of the rating for major depressive disorder from 70 percent to 30 percent, effective July 1, 2014, was improper and the 70 percent rating is restored, effective July 1, 2014, and to that extent the claim is granted. REMANDED The issue of entitlement to a rating greater than 70 percent for major depressive disorder is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence of record at the time of the April 2014 reduction action does not establish material improvement of the service-connected major depressive disorder. CONCLUSION OF LAW The reduction of rating for major depressive disorder from 70 percent to 30 percent, effective July 1, 2014, was improper. The 70 percent rating is restored, effective July 1, 2014. 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1972 to March 1974. A January 2014 rating decision denied entitlement to TDIU. When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, that issue is on appeal and will be addressed below. Reduction of Rating for Major Depressive Disorder The circumstances under which a rating may be reduced are specifically limited and carefully circumscribed by regulation. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). The Department of Veterans Affairs (VA) will handle cases affected by change of medical findings or diagnosis so as to produce the greatest degree of stability of ratings consistent with the law and regulations governing disability compensation and pension. Where a rating has been in effect for less than five years, the service connected disability has not become stabilized, or the disability is likely to improve, a rating may be reduced based upon reexaminations disclosing improvement, physical or mental, of the disability. 38 C.F.R. § 3.344(c). In any rating reduction case, it must not only 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. Brown v. Brown, 5 Vet. App. 413 (1993). The Veteran asserts that VA erroneously reduced the rating for the service connected psychiatric disability from 70 percent to 30 percent as the service connected disability had not been objectively shown to have improved. The report of a July 2013 psychiatric examination conducted for VA shows that the Veteran complained of sadness, worry, “mild memory loss, such as forgetting names, directions, or recent events;” and “memory loss for names of close relatives, own occupation, or own name.” The Veteran’s wife reported that the Veteran experienced slow thinking and memory loss. The Veteran was diagnosed with major depressive disorder. The examiner commented that the service connected psychiatric disability was productive of “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or symptoms controlled by medication.” The examiner made no findings that there was any specific improvement of the service connected psychiatric disability under the ordinary conditions of life and work. A January 2014 rating decision proposed to reduce the rating for major depressive disorder from 70 percent to 30 percent as “the overall evidentiary record shows that the severity of your disability most closely approximates the criteria for a 30 percent disability evaluation.” That rating decision did not find that there had been any sustained improvement of the service connected psychiatric disability under the ordinary conditions of life and work. An April 2014 rating decision effectuated the proposed reduction, effective July 1, 2014, as “the evidence does not support a change in our prior proposal.” At the time of the reduction action, the 70 percent rating had been in effect for less than five years. The Agency of Original Jurisdiction made no findings that there was sustained improvement of the service connected psychiatric disability or otherwise provided a specific basis for the reduction. An August 2016 rating decision increased the rating for the psychiatric disability from 30 percent to 50 percent, effective July 7, 2016. The evidence of record at the time of the April 2014 reduction action, including the report of the July 2013 psychiatric examination conducted for VA, neither shows that a sustained improvement of the psychiatric disability had occurred nor shows an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. At the time of the July 2013 psychiatric examination, the Veteran reported an actual worsening of memory loss which affected his daily and occupational activities. The rating decision did not identify any sustained improvement of the psychiatric disability. The rating decision noted only that the disability “most closely approximates the criteria for a 30 percent disability evaluation.” The failure to make a finding of improvement is a defect requiring restoration. Brown v. Brown, 5 Vet. App. 413 (1993). In fact, a later examination during the appeal period was found to indicate that a 50 percent rating was warranted. In the absence of any specific and objective findings of material improvement of the psychiatric disability, the Board concludes that the reduction of the rating for major depressive disorder from 70 percent to 30 percent effective as of July 1, 2014, was improper. 38 C.F.R. § 3.344(c). As the weight of the evidence does not show that there was an improvement in the Veteran’s ability to function under the ordinary conditions of life and work, and resolving reasonable doubt in favor of the Veteran, the prior rating will be restored. REASONS FOR REMAND The issue of entitlement to an increased rating for major depressive disorder is remanded. The Veteran was most recently examined in July 2016, over two years ago. The Veteran claims that his mental disorder has worsened. Therefore, more contemporary examination is needed. The issue of entitlement to TDIU is remanded. Because of the restoration of a 70 percent rating above for the service connected psychiatric disability, the issue of entitlement to a TDIU must be readjudicated for reconsideration. That issue is also inextricably intertwined with the claim for increased rating for major depressive disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA mental disorders examination. The examiner must review the claims file and should note that review in the report. The examiner should interview the Veteran. The examiner should opine as to the levels of occupational and social impairment due to the service-connected psychiatric disability and should describe the frequency and severity of symptoms resulting in those levels of impairment. The examiner should also opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disability, consistent with his training and experience, but not considering nonservice-connected disabilities or age. If the examiner is found to be capable of employment, the examiner should state what type of employment and what accommodations would be necessary due to the service-connected disability. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel