Citation Nr: 21002371 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 19-06 145A DATE: January 13, 2021 ORDER Entitlement to restoration of a 70 percent rating for unspecified depressive disorder with anxious distress (previously diagnosed as an anxiety disorder) effective October 4, 2016, is granted. REMANDED Entitlement to a rating in excess of 70 percent for unspecified depressive disorder with anxious distress (previously diagnosed as an anxiety disorder) is remanded. FINDING OF FACT The reduction of the 70 percent rating for the Veteran's unspecified depressive disorder with anxious distress (previously diagnosed as an anxiety disorder) to 50 percent, effective October 4, 2016, was not based on improvement in his ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction of the rating for unspecified depressive disorder with anxious distress (previously diagnosed as an anxiety disorder) from 70 percent to 50 percent effective October 4, 2016, was not proper and is void ab initio. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105(e), 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran and witnesses, B.S. and M.S., and testified at a videoconference hearing before the undersigned Veterans Law Judge; a transcript is of record. The Veteran’s notice of disagreement (NOD) appears to reflect dispute with not only the current disability rating, but also with the propriety of the reduction of the evaluation for his psychiatric disorder. Accordingly, the issue on appeal has been recharacterized as reflected on the title page. There is no prejudice in the Board’s adjudication of this matter, as the rating is being restored. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). 1. Entitlement to restoration of a 70 percent rating for unspecified depressive disorder with anxious distress (previously diagnosed as an anxiety disorder) effective October 4, 2016, is granted. In cases where a veteran's disability rating is reduced, the issue is whether the reduction of the disability rating was proper and generally does not include a claim for an increased rating. Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) ("this is a reduction case, not an increase case"). As noted, the Board observes that the August 2017 NOD appears to reflect dispute with not only the current disability rating, but also express disagreement with the propriety of the reduction of the evaluation for the psychiatric disorder from 70 percent to 50 percent. Accordingly, the Board will consider the propriety of the reduction as well as a claim for increase. While the subsequent statement of the case issued in February 2019 did not specifically include the propriety of the reduction, the Board has found the reduction to be void ab initio prompting its current action. Further, the Veteran is in no way prejudiced by this course of action. When the propriety of a rating reduction is at issue, the focus is on the actions of the RO in effectuating the reduction, both in terms of compliance with the special due process considerations applicable to reductions, and in terms of whether the evidence at the time of the decision reducing the evaluation supported the reduction. In most cases, violations of the set of due process considerations applicable to rating reductions, or failure of the evidence to meet the standards for reducing an evaluation, render the underlying reduction void ab initio, rather than merely voidable. The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (finding that the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. Where a disability rating is reduced, but the amount of compensation is not reduced, however, 38 C.F.R. § 3.105(e) does not apply. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran); see also VAOPGCPREC 71-91 (Nov. 7, 1991) (where the evaluation of a specific disability is reduced, but the amount of compensation is not reduced because of a simultaneous increase in the evaluation of one or more other disabilities, section 3.105(e) does not apply). The Veteran was not notified of a proposed rating reduction in this case. The RO initiated a review of the Veteran’s service-connected unspecified depressive disorder with anxious distress disorder by scheduling a VA examination in September 2016. Following receipt of the examination report, the RO took final action in October 2016 to reduce the disability rating. In an October 2016 rating decision, the rating was reduced from 70 to 50 percent, effective from October 4, 2016. The RO informed the Veteran of this decision by letter dated October 14, 2016. As the effect of the reduction reduced his overall evaluation to 80 percent disabling, but did not result in a change to his overall monthly compensation, the notice and 60 day waiting period was not required. Reducing a rating also brings concurrent substantive requirements that must be followed though. Although the regulatory requirements under 38 C.F.R. § 3.344(a) and (b) apply only to reductions of ratings that have been in effect for more than five years, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, regardless of whether the rating at issue has been in effect for five or more years. The Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability." Brown, 5 Vet. App. at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, and 4.13). Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation; the rating agency must determine whether the improvement 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. Ratings that have been in effect for more than five years, such as the Veteran's 70 percent rating, require improvement before an evaluation is reduced. 38 C.F.R. § 3.344(c). Where a rating has been in effect more than five years, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344 The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer, 2 Vet. App. at 277; Brown, 5 Vet. App. at 413; see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant's rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). Upon review of all the evidence of record, the Board finds that the October 2016 rating reduction is void ab initio because the RO did not address whether there was an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work. Review of the October 2016 rating decision which effectuated the reduction shows the RO analyzed the reduction just as it would a claim for an increased rating. The RO did not discuss provisions of 38 C.F.R. § 3.344 in its analysis. The RO’s reasoning consisted entirely of a finding that the October 2016 VA examination report and the overall evidentiary record showed the severity of the Veteran’s disability most closely approximated the criteria for a 50 percent disability evaluation. The RO failed to discuss whether the improvement represented "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." In other word, the RO's analysis merely focused on why the Veteran's disability did not warrant a higher rating than 50 percent. It failed to comply with the substantive provisions of 38 C.F.R. § 3.344 and Brown for a disability rating in effect for more than five years. As the rating action did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void ab initio. The appropriate remedy is a restoration of the 70 percent evaluation effective on the date of the reduction, which is October 4, 2016. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for unspecified depressive disorder with anxious distress previously diagnosed as an anxiety disorder is remanded. At the November 2020 Board hearing, the Veteran asserted that his disorder had increased in severity since last examined by VA in October 2016. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his disability. The Veteran also stated that he continues to be treated for his unspecified depressive disorder with anxious distress at the VA medical center (VAMC) located in Lexington, Kentucky. As the records in the claims file are current only through February 2019, updated treatment records should be associated with the file. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected unspecified depressive disorder with anxious distress. 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. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Caban, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.