Citation Nr: 21064478 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 16-30 857 DATE: October 20, 2021 ORDER The reduction from 50 percent rating to 30 percent for major depressive disorder to include depression and anxiety (MDD) effective August 1, 2015 was not proper; restoration of the 50 percent rating is granted. REMANDED For the increase rating period from June 18, 2014, a disability rating in excess of 50 percent for MDD is remanded. FINDINGS OF FACT 1. A May 2015 rating decision reduced the service-connected MDD rating from 50 to 30 percent, effective August 1, 2015. 2. As of August 1, 2015, the 50 percent rating for MDD had been in effect for less than five years 3. At the time of reduction, the lay and medical evidence of record regarding the Veteran's MDD did not show sustained improvement reasonably certain to be maintained under the ordinary conditions of life. CONCLUSION OF LAW As a preponderance of the evidence does not show improvement of the service-connected MDD, the criteria for restoration of the 50 percent rating from August 1, 2015 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from January 1971 to October 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision from the Regional Office (RO), which reduced the Veteran's disability rating from 50 to 30 percent, effective August 1, 2015. In June 2021, the Veteran testified at a Board virtual hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Because the issues on appeal arose out of a claim for increased rating for MDD, and the Veteran has continued to request an increased rating in the June 2015 NOD and at the Board hearing, the issue of increased disability rating in excess of 50 percent for the MDD remains on appeal before the Board. 1. A 50 percent Rating for MDD is Restored Effective August 1, 2015, the RO reduced the 50 percent rating for the service-connected MDD to 30 percent. The Board will now consider the propriety of the rating reduction, and whether the 50 percent rating should be restored. At the time the reduction became effective, August 1, 2015, the 50 percent rating for the psychiatric disability had been continuously in effect for less than five years. A rating reduction is not proper unless a veteran's disability shows actual improvement in his or her ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 349 (2000); Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The veteran need not demonstrate that retention of the higher rating is warranted; rather, it must be shown by a preponderance of the evidence that the reduction was warranted. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The question of whether a disability has improved involves consideration of the applicable rating criteria. For the rating period at issue, the service-connected MDD was rated under the criteria found at 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. A 50 percent rating is provided under DC 9434 when there is evidence of a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. After review of all the lay and medical evidence of record, the Board finds that a material improvement of the psychiatric disability was not demonstrated, including under the ordinary conditions of life and work; therefore, the rating reduction was not proper, and the criteria for restoration of a 50 percent rating for MDD, effective August 1, 2015, have been met. In a January 2012 rating decision, the RO increased the service-connected MDD to 50 percent effective August 31, 2011. The 50 percent rating for MDD was based on the October 2011 VA examination results showing psychiatric symptoms of sadness, sleep impairment, reduced concentration, irritability, and anhedonia. In consideration of these findings at the VA examination, the RO found that the psychiatric disability picture was consistent with the 50 percent rating criteria under DC 9434. At the time of the rating reduction decision, there was some evidence of improvement of the psychiatric disability in certain areas. In the August 2014 VA examination report, the VA examiner assessed that the psychiatric disability was manifested by occupational and social functioning with 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 including depressed mood and chronic sleep impairment. The RO reduced the rating to 30 percent based on this single VA examination measure of decrease in occupational and social functioning attributable to the service-connected MDD. However, in the August 2014 VA examination report, in addition to depression and chronic sleep impairment, the VA examiner also assessed symptoms of disturbances of motivation and mood, which are consistent with occupational and social impairment with reduced reliability and productivity. This evidence provides some support for finding that the psychiatric disability had not materially improved the at the time of the rating reduction. Post-reduction evidence shows that the Veteran's symptoms have not improved, and suggest that overall the Veteran's psychiatric disability has remained consistent with reduced reliability and productivity or greater occupational and social impairment, such that material improvement of the psychiatric disability is not demonstrated. In the June 2015 NOD and during the June 2021 Board Hearing, the Veteran reported that his psychiatric symptoms have not improved, and that he continued to experience depression, social isolation, low motivation, loss of interest in previous hobbies, poor concentration, and feels overwhelmed at the thought of going out, noting that he does not go out for weeks at a time. Disability Benefits Questionnaires submitted between 2017 and 2021 indicate that the psychiatric disability has manifested as depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of mood and motivation, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances, among others. See January 2017, August 2018, July 2021 Disability Benefits Questionnaires. This evidence provides further support for finding that the psychiatric disability had not materially improved the at the time of the rating reduction. When compared to the evidence of record when the 50 percent rating was initially awarded for the psychiatric disability in August 2011, the evidence at the time of the rating reduction did not show material improvement of the psychiatric disability. Rather, it showed similar or increased psychiatric symptoms and impairment with an overall disability picture still more nearly approximating the 50 percent rating criteria. In consideration thereof, the Board finds that it has not been established by a preponderance of the evidence that the psychiatric disability had undergone material improvement under the ordinary conditions of life and work at the time of the rating reduction decision in August 2015. Because the weight of the evidence of record in this case is against finding material improvement in the service-connected MDD at the time of the May 2015 rating reduction decision, the Board finds that the reduction of the 50 percent rating to 30 percent rating effective from August 1, 2015, was not proper; therefore, the 50 percent disability rating for the left shoulder disability will be restored. REASONS FOR REMAND 2. A disability rating in excess of 50 percent for MDD from June 18, 2014 is remanded. MDD is currently rated 50 percent under Diagnostic Code 9434. 38 C.F.R. § 4.130. The Veteran has submitted private Disability Benefits Questionnaires, which indicate that the psychiatric disability has worsened since the August 2014 VA examination. Specifically, private Disability Benefits Questionnaires submitted between 2017 and 2021 indicate that the psychiatric disorder has manifested as occupational and social impairment ranging between deficiencies in most areas and total occupational and social impairment. See January 2017, August 2018, July 2021 Disability Benefits Questionnaires. Because some evidence suggests that the service-connected MDD may have increased in severity since the August 2014 VA examination, the Board will remand for updated VA psychiatric examination. An increased rating for MDD is REMANDED for the following action: Schedule a VA psychiatric or psychological examination to help ascertain the current extent of the service-connected MDD. All indicated tests and studies should be performed. The VA examiner is requested to fully describe the functional effects caused by the psychiatric disability. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.