Citation Nr: 18152998 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 17-14 018 DATE: November 27, 2018 ORDER Restoration of the 70 percent disability rating for bipolar disorder effective March 1, 2016, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence of record at the time of the December 2015 rating decision did not demonstrate sustained and material improvement in the Veteran’s service-connected psychiatric disability that would be maintained under the ordinary conditions of life. CONCLUSION OF LAW The reduction of the rating for service-connected bipolar disorder from 70 to 50 percent was improper and restoration of the 70 percent rating effective March 1, 2016, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.344, 4.2, 4.3, 4.10, 4.130, Diagnostic Code 9432 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2011 to March 2014. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran’s disability rating for his bipolar disorder from 70 percent to 50 percent effective March 1, 2016. The Board notes that a rating reduction claim is separate and distinct from an increased rating claim. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). The claim decided herein was appealed to the Board as a reduction only. See Rating Decision dated December 2015; Statement of the Case dated March 2017; Supplemental Statement of the Case dated October 2017. As such, the issue of entitlement to a rating in excess of the reduction is not before the Board. Rating Reduction for Bipolar Disorder—Laws and Analysis The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155 (2012). When a veteran’s disability rating is reduced by a RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA 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 (2018). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath, 1 Vet. App. at 594. 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. Brown v. Brown, 5 Vet. App. 413, 421 (1993). Thus, 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. Id. 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. Cf. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). However, post-reduction evidence may not be used to justify an improper reduction. By way of procedural background, the Veteran was initially awarded service connection for bipolar disorder and was assigned a 70 percent disability rating. See April 2014 rating decision. Thereafter, the RO requested a new VA examination, which was conducted in January 2015. Based on the January 2015 VA examination, the RO proposed to reduce the rating for the Veteran’s disability from 70 to 50 percent. See February 2015 rating decision. In a February 2015 letter, the RO advised the Veteran of the proposed reduction and of his right to submit evidence and argument as to why his rating should not be reduced. The letter also advised him that he could request a hearing. The proposed reduction of his rating for the bipolar disorder disability was effectuated by a December 2015 rating decision, effective March 1, 2016, thereby meeting the requirement of a 60-day waiting period between the date of the final action and the effective date of the reduction. The question that remains is whether the RO correctly applied the substantive law and regulations regarding the reduction. The Board finds that the evidence does not support a finding of material improvement in the Veteran’s bipolar disorder disability at the time of the December 2015 rating decision. The RO’s reduction of the disability rating for the Veteran’s disability was based on a January 2015 VA examination, which presumably showed improvement in the Veteran’s symptoms. Regarding the January 2015 VA examination, the Board notes that, the Veteran continued to experience symptoms of depressed mood, anxiety, panic attacks, sleep impairment, and disturbances of motivation and mood. Further, since the examination in September 2013, the Veteran reported that he had separated from him wife, which demonstrates conflict with family relations that were not previously present. Moreover, as noted in a subsequent October 2016 VA examination, the Veteran’s bipolar disorder was manifested by periods of manic behavior, during which he does not sleep, followed by periods of depression during which he does not get out of bed. Given the nature of the Veteran’s disability (i.e., bipolar disorder), it is reasonable to assume that symptoms will wax and wane. Further, although in the January 2015 VA examination report the Veteran reported that his Lithium medication had helped his symptoms, he continued to have periods of mania and depression. In a subsequent October 2016 VA examination, the Veteran also reported not having friends and having difficulty making friends. His periods of depression resulted in not getting out of bed and a lack of motivation for about a week. The Board finds that the evidence of record, when considered as a whole, does not show a material and sustained improvement of the Veteran’s psychiatric disability from March 1, 2016. In a rating reduction case, it is not sufficient to show that an improvement in a disability has actually occurred. That is, it is not sufficient to show that the Veteran’s symptoms were temporarily improved. Instead, the evidence must also demonstrate that the improvement actually reflected an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21; Schafrath, 1 Vet. App. at 594. The Board finds that this second prong in effectuating a proper reduction has not been demonstrated by the evidence of record. In this regard, the evidence reflects that the Veteran continued to have difficulty with social interactions and with symptoms of mania and depression. Further, the Veteran continued to experience symptoms of anxiety, panic attacks, sleep impairment, and disturbance of motivation and mood. In sum, the Board finds that this evidence does not demonstrate improvement in the Veteran’s ability to function under the ordinary conditions of life and work. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the reduction of the disability rating for bipolar disorder was improper and restoration of the 70 percent evaluation is warranted from March 1, 2016. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel