Citation Nr: 21072336 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-22 009 DATE: December 2, 2021 ORDER The reduction of the Veteran's disability rating for an acquired psychiatric disorder, to include generalized anxiety disorder (GAD), bipolar disorder, depression, and obsessive-compulsive disorder (OCD), from 70 percent to 50 percent disabling, effective April 1, 2015 was improper; restoration of a 70 percent disability rating effective April 1, 2015 is granted. Entitlement to an initial rating higher than 70 percent for an acquired psychiatric disorder, to include GAD, bipolar disorder, depression, OCD, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran's service-connected acquired psychiatric disorder was improperly reduced from 70 percent to 50 percent disabling as the record did not show an actual improvement in the ability to establish and maintain effective relationships or occupational and social impairment with deficiencies in most areas. 2. Throughout the appeal period, the Veteran's symptoms of acquired psychiatric disorder, GAD, bipolar disorder, depression, OCD, more nearly approximate occupational and social impairment with deficiencies in most areas; total occupational and total social impairment is not shown. CONCLUSIONS OF LAW 1. The criteria to restore the Veteran's 70 percent rating for acquired psychiatric disorder, effective April 1, 2015, have been met. 38 U.S.C.§§ 5107, 5112; 38 C.F.R. §§ 3.105(e), 3.344, 4.3, 4.71a, Diagnostic Codes (DC), 9400, 9404, 9432, 9434. 2. The criteria for a rating higher than 70 percent for acquired psychiatric disorder, GAD, bipolar disorder, depression, OCD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9400, 9404, 9432, 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in September 2021; a transcript of the hearing is of record. 1. Propriety of rating reduction for an acquired psychiatric disorder from 70 percent to 50 percent The Veteran contests the propriety of the rating reduction from 70 percent to 50 percent for his acquired psychiatric disorder and asserts that his symptoms are severe than his 50 percent rating. The Board concludes that the criteria for restoration of a 70 percent rating for an acquired psychiatric disorder from April 1, 2015, are met as the rating reduction was improper, as explained below. In September 2011, the Veteran filed a claim for an increased rating for his GAD. In a February 2012 rating decision, the RO increased the rating for the Veteran's GAD from 10 percent to 70 percent disabling. Based on an August 2014 VA Examination, a January 2015 rating decision reduced the evaluation of his GAD from 70 to 50 percent disabling. When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the agency of original jurisdiction (AOJ) satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. Procedural Due Process Regarding the first question, when a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. A veteran must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the action. Additionally, a veteran must be given notice that he has (1) 60 days to present additional evidence to show that compensation payments should be continued at the present level, and (2) 30 days to request a predetermination hearing. 38 C.F.R. § 3.105(e), (i). 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 a veteran of the final rating action expires. Also, if a predetermination hearing is not requested or if a veteran failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record, including any additional evidence obtained following the hearing pursuant to necessary development. If a reduction is then found warranted, the effective date of such reduction shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. 38 C.F.R. § 3.105. As a preliminary matter, the Board finds that procedural requirements were satisfied in this rating reduction. Notice was sent in a September 2014 rating decision and September 2014 due process letter both of which informed the Veteran of the proposed rating reduction. In October 2014, the Veteran requested a personal hearing. At a January 2015 informal hearing, the Veteran submitted no additional information. Subsequently, a January 2015 rating decision and January 2015 due process letter explained the effect the proposed reduction would have on the Veteran's combined disability evaluation and informed the Veteran of his options to submit additional evidence and request a personal hearing. The AOJ reduced the Veteran's disability rating, effective April 1, 2015. The AOJ satisfied the requirements by allowing a 60-day period to expire before assigning the reduction effective date. See 38 C.F.R. § 3.105. Accordingly, the remaining question is whether the reduction in the disability rating is warranted based on the medical and lay evidence of record. Reductions There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by VA regulations. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). 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 v. Brown, 5 Vet. App. 413, 420 (1993) (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). Under 38 C.F.R. § 3.344(c), applicable to ratings such as these in effect for less than 5 years, requires improvement before an evaluation is reduced. Implicit in the regulations is that any improvement must be of such a nature as to warrant a change in the evaluation. The Brown case articulated three questions that must be addressed in determining whether a rating reduction was warranted by the evidence. First, a rating reduction case requires ascertaining "whether the evidence reflects an actual change in the disability." Second, it must be determined whether the examination reports reflecting such change were based upon thorough examinations. Third, it must be determined 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. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 38 U.S.C. § 1155. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's GAD was rated as 50 percent disabling pursuant to DC 9400. 38 C.F.R. § 4.130. Except for eating disorders, all psychiatric disabilities are evaluated pursuant to General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped 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; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when there is 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); and inability to establish and maintain effective relationships. Id. The evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"e.g., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9400. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Analysis The Veteran was provided a VA examination in August 2014 in which the examiner stated that the Veteran has only one mental health diagnosis: an unspecified anxiety disorder. The examiner opined that the Veteran is functioning satisfactorily, with normal routine behavior. The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. The Board finds that throughout the appeal, the Veteran's service-connected acquired psychiatric disorders produced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; impaired impulse control (such as unprovoked irritability with periods of aggression or confrontation); spatial disorientation; moderate difficulty in occupational and social impairment in most areas. The Board notes that the August 2014 examination was based on an inaccurate factual premise by either not recording all his psychiatric diagnoses or misdiagnosing the Veteran. See August 2014 VA Examination, pg.1; see also March 2017 VA Examination, pgs. 4, 7 (indicating "the [2014] examiner missed this diagnosis," and a "condition was inadvertently left undiagnosed in the most recent C&P examination completed in 2014."). Socially, the Veteran reported very limited social activities with his girlfriend of 16 years, has contact with his sister and daughter, but is distant from his son. The Board acknowledges that during the pendency of the appeal the Veteran was not working but has also been unable to maintain the ability to interact with others without confrontational behavior. The Veteran endorsed that he does not trust anyone and becomes confrontational. See September 2021 Hearing Testimony, pg. 9. The Board notes the Veteran's MOS was as a radar specialist. See DD 214. The record indicates he last worked for 10 years as a correctional officer and in 2008 he was fired due to a disagreement with his supervisor. See August 2014 VA Examination, pg. 3. The evidence indicates that the social and occupational impairment stemming from his symptoms of an acquired psychiatric disorder included obsessive rituals with interference with routine activities, disturbance of motivation and mood, depressed mood, mild memory loss, pressured speech, difficulty concentrating, irritability with outbursts of anger, avoidance of certain activities, with intermittently illogical, obscure, or irrelevant speech and impaired impulse control (such as unprovoked irritability with periods of aggression). The Veteran reported difficulty in adapting to stressful circumstances (including medical appointments, examinations, hearings, interactions at businesses or work-like settings); and inability to establish and maintaining effective relationships. Based on the foregoing, the Board finds that the frequency, severity, and duration of the Veteran's acquired psychological disorders symptomatology were most closely related to a finding of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Therefore, the evidence does not reflect an actual change in the impact of the Veteran's disability under the ordinary conditions of life and work. The most probative evidence of record, a VA examination, medical records, lay statements, and hearing testimony indicate that the Veteran's acquired psychiatric disorder symptoms did not improve in his ability to function under the ordinary conditions of life and work. Accordingly, restoration of a 70 percent disability rating is granted. 2. Increased rating higher than 70 precent for acquired psychiatric disorder The Veteran contends that his acquired psychiatric disorder, to include GAD, bipolar disorder, depression, OCD, warrants a 100 percent disability rating, or at the least, more than his 50 percent rating. The Veteran underwent a new VA examination in March 2017. A December 2017 rating decision continued his 50 percent rating for GAD. The most recent VA examination was undertaken in 2017. The Board considered sending the Veteran for another VA examination; however, the Veteran explicitly stated that he would not attend another examination. Therefore, the Board informed the Veteran that the decision regarding his increased rating claim would be based on the evidence of record, as well as his in-person testimony. The Board is cognizant that the Veteran is competent to report his symptoms, and the Board has considered his lay statements regarding the symptoms of his disability in rendering this decision. GAD is rated pursuant to DC 9400, bipolar disorder is rated pursuant to DC 9432, depression is rated pursuant to DC 9434 for depressive disorders, and OCD is rated pursuant to DC 9404. Except for eating disorders, all mental disorders including GAD, bipolar disorder, depression, and OCD, are rated under the General Rating Formula for Mental Disorders (General Formula). The rating criteria are the same for each of them under 38 C.F.R. § 4.130, as cited above. Under the General Rating Formula for Mental Disorders, a 100 percent evaluation is assigned for 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; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. §4.130. The analysis for rating psychiatric disorders is "symptom driven." Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). The "frequency, severity, and duration" of symptoms play "an important role" in determining a veteran's disability level. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Because the symptoms contained in the rating criteria are merely as examples of the type and degree of symptoms that justify the associated rating, the Board must appropriately consider any of the veteran's symptoms not expressly listed in the regulation. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017). But symptoms are not the determinative factor. Although "the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 118 (quoting 38 C.F.R. § 4.130). There must be an "initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Id. This is a "holistic analysis." Bankhead, 29 Vet. App. at 22. After considering these factors and based the evidence of record that bears on occupational and social impairment, the disability rating assigned is one "that most closely reflects the level of social and occupational impairment [the] veteran is suffering." Mauerhan v. Principi, 16 Vet. App. 436, 440-41 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the higher evaluation criteria; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Application The Veteran was provided another VA examination in March 2017. The examiner noted that the Service Treatment Records (STRs) indicate that the Veteran was medical discharged due to extended hospitalization for treatment of a manic episode. The examiner noted that the Veteran continues to experience periods of mania, hypomania, depression, and anxiety. Based on the evaluation, the examiner noted that the Veteran continues to experience symptoms. The examiner concluded that the Veteran's behavior was normal and routine in behavior and conversation. But the examiner also noted the Veteran was uncooperative, and that "[d]ue to his general uncooperativeness with the examination, only minimal information was gathered regarding the required sections of the current template. His uncooperative behavior is noted in behavioral observations later in the report." The examiner noted that the Veteran's speech was "pressured, rapid tangential speech, poor social judgment and impaired impulse control in interpersonal interactions." The examiner indicated that his behavior during the examination was consistent with bipolar I disorder with anxiety and medications, and his treatment regimen may be keeping manic symptoms to a hypomanic level. The examiner noted that the Veteran recalled the reason for the examination, different events of the recent past, did not endorse delusions or hallucinations, disorientation, and was not a danger to himself or others. The examiner noted that his hygiene and clothing were appropriate, and was handling his own financial affairs. The 2017 VA examiner noted that the Veteran would not complete the mental health examinations as he was confrontational and uncooperative. Thus, the record indicates verbal aggression in social and work-like settings, which may cause difficulties with workers or supervisors. The 2017 examiner did not consider the difficult interaction, uncooperativeness, and confrontational behavior as an indicator of difficulty following tasks of employment. See 38 C.F.R. § 4.2. Regarding mental health, he has been attending treatment for bipolar disorder since 1994, has had no hospital inpatient admissions since that time, does not experience suicidal ideation, continues to see his current prescriber two to three times a year, and is taking anti-depressants. Socially, the Veteran reported that he continues to live alone and has a girlfriend who lives in a separate residence. He reports that he occasionally goes out to socialize to make his girlfriend happy. He has contact with his daughter, but his son is distant. Regarding occupational impairments, the Veteran stated that he has not been able to retain consistent employment since 2008 due to his medical problems. Upon review of the record, the Board notes that the Veteran described situations in which he becomes confused or frustrated, but not physically aggressive. The Veteran exhibited and or endorsed the following symptoms during his in-person hearing: obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability) causing occupational and social deficiency in most areas. See generally, September 2021 Board Hearing Transcript. The Board finds that the frequency, severity, and duration of his symptomatology most closely relate to a finding of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board also finds that the probative evidence of record has not shown a next higher rating of 100 percent is warranted. The Veteran's symptomatology has not shown a total occupational and total social impairment, due to such symptoms as: a 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 (ADL) (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or his own name. Although the examiner reported an inability to complete all tests, the information provided by the Veteran during the interview indicates he does not endorse persistent danger to himself or others, inability to perform ADL, gross impairment of thought processes or communication, persistent delusions of hallucinations, disorientation to time or place or self or memory loss of key facts in his life. The Veteran endorsed social functions and the management of his own financial affairs. The Board considered symptoms not expressly listed in the regulation. However, the Veteran's level of impairment in 'most areas' does not more closely reflect total occupational and total social impairment. An initial assessment of the symptoms displayed by the Veteran more closely reflect the 70 percent rating from occupational and social impairment with deficiencies in most areas. Under a "holistic analysis" his disability warrants a rating of 70 percent disabling, and no higher. After considering all factors, the preponderance of the evidence most closely reflects a social and occupational impairment in most areas. The Veteran is competent to report his disability symptoms have worsened, but whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the lay testimony coupled with the medical evidence. Although he believes he meets the criteria for a 100 percent rating, his complaints, and the medical findings do not meet the schedular requirements for a higher evaluation at any time during the appeal period. Accordingly, the preponderance of the evidence is against an increased rating higher than 70 percent for an acquired psychiatric disorder. Thus, the benefit of the doubt rule is not for application. REASONS FOR REMAND 1. Entitlement to Rice TDIU The Veteran reported that his psychiatric disabilities impacted his ability to work. Most recently in March 2017, the Veteran stated that his disabilities prevented him from seeking or maintaining employment. Given this information, an inferred issue of TDIU has been reasonably raised by the record as part and parcel of the Veteran's increased rating claim for acquired psychiatric disorders. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). As such, remand is necessary further development and initial adjudication. Accordingly, the matter is REMANDED for the following action: 1.The AOJ should send the Veteran and his representative a TDIU application (VA Form 21-8940) to provide relevant information concerning his work and educational history; request the form be completed; take any additional development as deemed necessary. 2. Adjudicate the Rice TDIU claim. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.