Citation Nr: 18154592 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-23 732 DATE: November 30, 2018 ORDER The November 2013 reduction in the rating from 50 percent to 30 percent for service-connected obsessive-compulsive disorder (OCD), effective February 1, 2014 was proper. FINDINGS OF FACT 1. In a March 2012 rating decision, service connection for OCD was granted and an initial 50 percent rating was assigned, effective January 29, 2012. 2. In a December 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) notified the Veteran of a proposal to reduce the disability rating for her service-connected OCD from 50 percent to 30 percent, as well as a 60 day period for the submission of evidence and the right to request a predetermination hearing within 30 days. 3. In a November 2013 rating decision, the RO effectuated the reduction of the disability rating for the Veteran’s service-connected OCD from 50 percent to 30 percent, effective February 1, 2014. 4. At the time of the reduction, the 50 percent rating for service-connected OCD was in effect for less than five years. 5. The evidence at the time of the reduction demonstrated that the Veteran’s OCD had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the rating from 50 percent to 30 percent for service-connected OCD, effective February 1, 2014, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1-4.14, 4.104, Diagnostic Code (DC) 9404. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from September 2008 to January 2012. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the VA RO in Atlanta, Georgia, which reduced the Veteran’s disability rating for OCD from 50 percent to 30 percent effective February 1, 2014. Thereafter, the Veteran perfected an appeal as to the propriety of the reduction. Initially, the Board notes that there are specific particularized notice requirements that apply in cases where the issue is a reduction in rating. These procedural safeguards afforded to the claimant are set forth under 38 C.F.R. § 3.105(e), are required to be followed by VA before issuing any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). Pursuant to 38 C.F.R. § 3.105(e), initially, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will then be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. If additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. The Board concludes that the procedural requirements for reduction have been satisfied in this case. By way of procedural history, in a March 2012 rating decision, the RO granted service connection for OCD and assigned an initial rating of 50 percent, effective January 29, 2012. In a December 2012 rating decision, the RO notified the Veteran of a proposal to reduce the disability rating for her service-connected OCD from 50 percent to 30 percent. The Veteran and her representative were notified of that proposal by a letter dated in December 2012, which included information on their right to request a hearing, and informing the Veteran that her benefits would be reduced if he failed to submit additional evidence within 60 days. The Veteran did not respond to the proposed reduction, nor did she submit additional evidence or request a hearing. Thereafter, in a November 2013 rating decision, the RO effectuated the reduction of the disability rating for the Veteran’s service-connected OCD from 50 percent to 30 percent, effective February 1, 2014. The Veteran was advised of such reduction in a letter the same month. As such, the proper procedures were followed. Turning to the merits of the case, in any case involving a rating reduction, the fact-finder must ascertain, based upon a review of the entire record, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon a thorough examination. To warrant a reduction, it must be determined not only that an improvement in the disability level has actually occurred, but also that such improvement actually reflects an improvement in the ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13). When a rating has continued for a long period at the same level (5 years or more), any rating reduction must be based on an examination that is as complete as the examinations that formed the basis for the original rating and that the condition not be likely to return to its previous level. 38 C.F.R. § 3.344 (a), (b), (c); Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). A reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). However, where a rating has been in effect for less than five years, the regulatory requirements under 38 C.F.R. § 3.344 (a) and (b) are inapplicable, as set forth in 38 C.F.R. § 3.344 (c). In such cases, 38 C.F.R. § 3.344 (c) states that reexamination disclosing improvement will warrant reduction in rating. In the instant case, the 50 percent rating was in place less than five years at the time of the reduction as such had been awarded as of January 29, 2012. Therefore, evidence of improvement from reexamination is sufficient for the reduction. See 38 C.F.R. § 3.344 (c). The reduction of a rating generally must have been supported by the evidence on file at the time of the reduction, but pertinent post-reduction evidence favorable to restoring the rating must also be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). If there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt shall be resolved in favor of the Veteran. In other words, a rating reduction must be supported by a preponderance of the evidence. 38 U.S.C. § 5107(a); see also Brown, 5 Vet. App. at 421. Following a review of the evidence, the Board finds that the reduction in the rating for OCD from 50 percent to 30 percent, effective February 1, 2014, was proper. See 38 C.F.R. § 3.344. In this regard, the Veteran’s service-connected OCD is evaluated pursuant to 38 C.F.R. § 4.130, DC 9404. Under DC 9404, a 50 percent evaluation is assigned when the OCD results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. A 30 percent evaluation is assigned when OCD results in 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), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The RO assigned the initial 50 percent rating for the Veteran’s OCD based on the Veteran’s service treatment records as well as a July 2011 VA psychiatric examination. Significantly, the July 2011 VA examination noted that the Veteran experienced occasional decrease in work efficiency and intermittent inability to perform occupational tasks due to mental disorder, but with generally satisfactory functioning, indicative of a 30 percent disability rating under DC 9404. Medical records dated since the March 2012 rating decision include a November 2012 VA psychiatric examination as well as VA treatment records dated through February 2016. Significantly, the November 2012 VA examiner 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, indictive of a 10 percent disability rating, under DC 9404. VA medical records generally documented treatment for OCD. An initial August 2012 assessment showed that testing showed mild OCD and mild depression. An October 2013 record similarly found mild OCD. VA medical records included multiple mental status examinations generally included findings of sufficient, intact, normal, and relevant. VA medical records, such as from May 2014 indicated that she was doing well, with subsequent records, such as from August 2015 and February 2016 showing that she was doing the same/no change. A February 2016 VA medical record showed a medical finding of no change, though the Veteran reported an increase in OCD symptoms after receiving a promotion and purchasing a new house. The mental status examination continued to be mostly normal. In a March 2017 lay statement, her mother reported that the Veteran had a severe panic attack while driving earlier that month, and that such panic attacks and compulsions had increased after the Veteran had been involved in a car accident the month prior and had stopped taking her psychiatric medications. The most recent March 2018 VA medical record documents a Beck Depression Inventory score indicating moderate depression, on the low end of the moderate depression range. The VA medical provider reported that he had last seen the Veteran about half a year previously when she decided to stop her medications due to breastfeeding and had started a new job since then. The mental status examination included generally normal findings of appearance, motor activity, interpersonal, speech, attention, concentration, memory, thought process, thought content, judgment, insight, and orientation. Affect was restricted and mood down. The provider indicated that medication would be resumed. In March 2018, the Veteran also submitted a lay statement indicating that she had been trying to cope with her psychiatric symptoms without relying on medication and was depressed because she could not continue to breastfeed because of her need for medication and that she was not getting better. She reported fear of being alone with her child and that her condition had gotten worse. Based on the foregoing, the Board concludes that the RO’s reduction in rating from 50 to 30 percent for OCD was proper as the evidence at the time of the reduction demonstrated that the Veteran’s OCD had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work. In this regard, the November 2012 VA examination and VA treatment records dated through February 2016 reflect that the Veteran’s OCD had improved and was manifested by 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). Absent evidence of more severe psychiatric symptoms, a rating in excess of 30 percent is not warranted. As previously noted, when determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated – February 1, 2014. The recent reports of a worsening of symptoms years were made years after the reduction, after a motor vehicle accident, stopping her medications, and other life changes. Such reports of a worsening starting years after the February 2014 reduction are not supportive of finding that at the time of the reduction a sustained and material improvement had been shown at the time of the February 2014 reduction. For the reasons set forth above, the Board finds that the reduction in the rating from 50 percent to 30 percent for service-connected OCD, effective February 1, 2014, was proper. Accordingly, the preponderance of the evidence is against the restoration of the 50 percent rating for OCD. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Lindio