Citation Nr: A21017154 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 191106-42378 DATE: October 22, 2021 ORDER A disability rating of 50 percent, but no more, for an acquired psychiatric disorder from June 1, 2018 is granted. FINDING OF FACT The Veteran continually pursued his claim since the March 2018 rating decision reducing the Veteran's disability rating from a 70 percent disability rating to a noncompensable disability rating, and evidence has been submitted into the record since the March 2018 rating decision that was not previously part of the actual records before agency adjudicators and the evidence tends to prove the Veteran's claim for an increased disability rating; and the evidence of record indicates that the Veteran manifested occupational and social impairment with reduced reliability and productivity; but the Veteran has not manifested total occupational and social impairment throughout the period on appeal or occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The period on appeal began on November 25, 2017 the day the Veteran commenced the claim that was initially disposed of in the March 2018 rating decision, and new and relevant evidence has been submitted to readjudicate the March 2018 rating decision; and the criteria for a disability rating of 50 percent, but no more, have been met throughout the period on appeal. 38 U.S.C. §§ 501, 1155, 5108, 5112; 38 C.F.R. §§ 3.105, 3.160, 3.2500, 3.2501, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from April 1974 to April 1978. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the Appeals Modernization Act (AMA) appellate framework. In the November 2019 notice of disagreement (NOD) which commenced this appeal, the Veteran opted into the Direct Review docket. Therefore, the Veteran does not desire a personal hearing before the Board, and the record on appeal closed on October 30, 2019; the date the Veteran was notified of the decision on appeal. The psychiatric disorder was previously disposed of in a July 2020 Board decision, and, in June 2021, the Court of Appeals for Veterans Claims (Court) vacated the Board's previous disposition and remanded the matter back to the Board for further consideration. A disability rating of 50 percent, but no more, for an acquired psychiatric disorder from June 1, 2018 is granted. At issue is whether the Veteran is entitled to an increased disability rating for an acquired psychiatric disorder. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 50 percent, but no more, from June 1, 2018. Prior to the period on appeal, the Veteran was assigned a disability rating of 70 percent for an acquired psychiatric disorder. See August 2017 Rating Decision Code Sheet. In June 2017, the Veteran filed an increased rating claim, and, in August 2017, the RO proposed reducing the Veteran's disability rating to a noncompensable disability rating; and, in March 2018, the RO reduced the Veteran's disability rating for an acquired psychiatric disorder from 70 percent to a noncompensable disability rating. The Veteran appealed. During the pendency of the appeal, the Veteran opted into the Rapid Appeal Modernization Program (RAMP) in August 2018; opting into Higher-Level Review. In a March 2019 Higher-Level Review decision, the noncompensable disability rating was continued. In July 2019, the Veteran filed a supplementary claim, and, in September 2019, the RO increased the Veteran's disability rating to 30 percent effective July 24, 2019. Finally, the Veteran filed a final supplemental claim in October 2019, and, that same month, the RO denied the Veteran's claim. The Veteran appealed. In a July 2020, the Veteran was assigned a disability rating of 50 percent effective July 24, 2019. The Veteran appealed. In June 2021, the Court vacated the Board's disposition and remanded the matter back to the Board for disposition. As discussed above, the Veteran commenced a claim in June 2017, and the Veteran continuously filed timely appeals or timely supplemental claims prior to any of the individual decisions becoming final. Therefore, the Veteran has continuously pursued the claim since November 2017. See 38 C.F.R. § 3.160(d); 38 C.F.R. § 3.2500(c)(2); see also June 2021 Court decision. "If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record." 38 U.S.C. § 5108(a). "New evidence is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.2501. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim... [and] includes evidence that raises a theory of entitlement that was not previously addressed." Id. The first supplemental claim was filed in July 2019 after notification of an unfavorable Higher-Level Review decision in March 2019. Typically, the record before agency adjudicators would be the previous rating decision that the Higher-Level Review was reviewing; in this case the March 2018 rating decision. As the Higher-Level Review was initiated pursuant to RAMP however, the record closed on August 31, 2018; the date the Veteran opted into RAMP. The evidence of record prior to August 31, 2018 indicated that the Veteran's acquired psychiatric disorder did not result in occupational and social impairment. Notably this evidence included a March 2018 VA examination opining as much. Evidence submitted into the record since August 31, 2018 includes and August 2019 VA examination indicating that the Veteran manifested occupational and social impairment due to mild or transient symptoms. The August 2019 VA examination is new evidence, because it was not before agency decision makers on or before August 31, 2018. The August 2019 VA examination is relevant evidence because it tends to suggest that the Veteran was entitled to a disability rating of 30 percent rather than a noncompensable disability rating; see 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; at least as early as the day after the March 2018 VA examination. Therefore, the evidence is new and material, and VA must readjudicate the Veteran's claim of the appropriateness of reducing the Veteran's disability rating of 70 percent for an acquired psychiatric disorder to a noncompensable disability rating. Once a disability rating has been assigned, the substantive protections for that disability rating depend on the length of time that the Veteran had been assigned that disability rating. When as in this case the Veteran has been assigned a disability rating for less than five years, a disability rating may be reduced upon and adequate examination that discloses an improvement in the disability. 38 C.F.R. § 3.344 Typically, the RO must provide notice of an impending rating reduction by first issuing a rating decision proposing to reduce a disability rating and giving the Veteran 60 days to challenge this proposed action prior to any rating decision actually implementing a rating reduction. 38 C.F.R. § 3.105(e). Moreover, failure to abide by these notice requirements typically renders any such rating reduction void ab initio. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In August 2017, the RO issued the rating decision proposing the rating reduction and providing the Veteran 60 days to respond, and the Veteran's disability rating was not reduced until March 2018; well over 60 days since the August 2017 rating decision. Therefore, the notice requirements were complied with. Adequate VA examinations conducted in August 2017 and on March 1, 2018 both indicated that the Veteran did not manifest any occupational or social impairment. This indicates that the Veteran's condition had improved from the previous severity of the Veteran's acquired psychiatric disorder; which was that it manifested occupational and social impairment with deficiencies in most areas. Therefore, the rating reduction was proper. As discussed previously, however, the record contains an August 2019 VA examination indicating that the Veteran manifested occupational and social impairment due to mild or transient symptoms. This suggests that the Veteran was entitled to a compensable disability rating as early as March 2, 2018; the day after the March 2018 examination and the earliest possible date it is ascertainable that the Veteran's disability increased in severity. As discussed in a July 2020 Board decision moreover, the Board interpreted this examination to indicate that the Veteran was entitled to a disability rating of 50 percent. Therefore, the Veteran would be entitled to a disability rating of 50 percent effective March 2, 2018. The rating reduction did not go into effect however until June 1, 2018; prior to that the Veteran still having the original disability rating of 70 percent. See July 2020 Rating Decision Code Sheet. Therefore, the Veteran a disability rating of 50 percent effective June 1, 2018 is granted. Finally, the Board must consider whether or not the Veteran is entitled to a disability rating in excess of 50 percent throughout the period on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for mental disorders are evaluated pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a disability rating of 50 percent is assigned when a mental disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 70 percent is assigned when a mental disorder causes occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A total disability rating is assigned when a mental disorder causes total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. The Veteran underwent a VA examination in August 2017. The Veteran indicated that he lives by himself, but that he had a girlfriend; and that he occasionally talked to his children. The examiner did not indicate that the Veteran manifested disturbances in judgement, thinking, or mood. The examiner opined that the Veteran did not manifest any occupational or social impairment. The Veteran underwent another VA examination in March 2018. The Veteran indicated that he lives with his girlfriend. The examiner did not indicate that the Veteran manifested disturbances in judgement, thinking, or mood. The examiner opined that the Veteran did not manifest any occupational or social impairment. The Veteran underwent another VA examination in August 2019. The Veteran reported a good relationship with his girlfriend; who he lives with. The Veteran stated that he regularly visited his siblings and regularly spoke to his children and stepchildren. The Veteran indicated that he had been unemployed since 1994. The examiner did not indicate that the Veteran manifested disturbances in judgement, thinking, or mood. The examiner opined that the Veteran manifested 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. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating throughout the period on appeal. In order to meet the criteria for a total disability rating, the Veteran needed to manifest total occupational and social impairment. Nevertheless, the Veteran has been able to maintain a relationships throughout the period on appeal with his girlfriend, siblings, and children. Additionally, three VA examiners all indicated that the Veteran did not manifest total occupational and social impairment, and the record is otherwise silent for a medical opinion suggesting otherwise. The weight of the evidence indicates that the Veteran is not entitled to disability rating of 70 percent throughout the period on appeal. In order to meet the criteria for a disability rating of 70 percent, the Veteran needed to manifest deficiencies in most areas such as school, work, family relations, judgement, thinking, or mood. The Veteran is unemployed and has not attended school. Nevertheless, this is normal given the Veteran's age cohort. Additionally, the Veteran has maintained relationships with his girlfriend, siblings, and children. Moreover, the record is silent for disturbances in judgement, thinking, or mood. Finally, three VA examiners all indicated that the Veteran did not manifest occupational and social impairment with deficiencies in most areas such as school, work, family relations, judgement, thinking, or mood, and the record is otherwise silent for a medical opinion suggesting otherwise. Here, the weight of the probative evidence of record demonstrates that the Veteran is entitled to a disability rating of 50 percent effective June 1, 2018. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating of 50 percent, but no greater, effective June 1, 2018 is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.