Citation Nr: 21075396 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 19-02 134 DATE: December 20, 2021 ORDER Restoration of a 70 percent evaluation for post-traumatic stress disorder and major depression with psychotic features (hereinafter "acquired psychiatric disability") is granted. FINDING OF FACT The preponderance of the evidence did not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW Restoration of a 70 percent disability evaluation for an acquired psychiatric disability is warranted. See 38 U.S.C. § 1155; 38 C.F.R. § 3.344. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to December 1982 and from October 2001 to August 2012. This matter comes to the Board of Veterans' Appeals (Board) from an August 2017 rating decision that decreased the Veteran's 70 percent evaluation for an acquired psychiatric disability to 50 percent, effective November 1, 2017. In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the Veteran asserts that a higher evaluation for an acquired psychiatric disability and a total disability evaluation based on individual unemployability is warranted. The only issue pending before the Board is whether the 70 percent evaluation should be restored. The Veteran can take the appropriate action following this decision to pursue a higher evaluation or a total disability evaluation by filing a claim. Restoration of a 70 percent evaluation for an acquired psychiatric disability is granted. The Veteran contends that the rating reduction from 70 percent to 50 percent for an acquired psychiatric disability, effective November 1, 2017, was improper. While the regulations at 38 C.F.R. § 3.344 set forth specific requirements for disability evaluations in effect for five years or more, VA must determine in any rating-reduction case whether an improvement in a disability has actually occurred and, if so, whether such improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Stern v. McDonough, 34 Vet. App. 51, 58 (2021). VA has the burden of showing that a preponderance of the evidence supports the rating reduction. See Brown, 5 Vet. App. at 421. A rating reduction is not warranted when the evidence of record is in relative equipoise. See id. In August 2012, the Veteran separated from service after a Medical Evaluation Board recommended a permanent profile due to a diagnosis of post-traumatic stress disorder and major depression with psychotic features. A June 2013 rating decision granted service connection for an acquired psychiatric disability and assigned a disability evaluation of 70 percent, effective August 27, 2012. At a November 2016 VA examination, Dr. L.J., a psychologist, diagnosed the Veteran with post-traumatic stress disorder and major depression without psychotic features. Dr. J. opined that these disabilities resulted in occupational and social impairment with reduced reliability and productivity. Dr. J. stated that the Veteran's overall symptoms appeared to have improved, with the exception of sleep. Dr. J. stated that the Veteran had no psychosis since 2012 and that she had almost completed a master's degree. A December 2016 rating decision proposed to decrease the Veteran's 70 percent evaluation for an acquired psychiatric disability to 50 percent. At a January 2017 VA mental health session, the Veteran informed Nurse B.S., a psychiatric and mental health nurse practitioner, of the proposed rating reduction. Nurse S. stated that her treatment records did not indicate improvement due to severe sleep disturbance and continuing symptoms. In a February 2017 letter, Nurse S. stated that she had treated the Veteran since February 2016. Nurse S. stated that the Veteran recently completed a master's degree, but that she could not work in close proximity to others. While the Veteran had no psychosis or paranoia since 2012, Nurse S. stated that the Veteran continued to have severe sleep disruption, low motivation, high irritability, and depression. An August 2017 rating decision decreased the Veteran's 70 percent evaluation for an acquired psychiatric disability to 50 percent, effective November 1, 2017. The rating decision stated, in part, that Nurse S.'s letter showed continuing improvement. Based on a review of the evidence of record. the Board finds that the preponderance of the evidence did not show improvement in the Veteran's ability to function under the ordinary conditions of life and work. Dr. J. provided an opinion of occupational and social impairment that is consistent with a 50 percent evaluation. See 38 C.F.R. § 4.130. While there is evidence that some of the Veteran's symptoms improved, to include psychosis, Nurse S.'s letter and the January 2017 VA treatment record showed that there was no improvement in terms of the ordinary conditions of life and work. The Board does not have to determine whether Dr. J.'s opinion is adequate or weigh the competing opinions. Nurse S. provided a well-reasoned opinion showing that improvement had not occurred, and this opinion was based on her treatment history with the Veteran. The Board notes that, while the August 2017 rating decision relied on Nurse S.'s letter, the decision did not consider the letter in light of the January 2017 VA treatment record indicating that no improvement had occurred. Given the aforementioned, the Board restores the Veteran's 70 percent evaluation for an acquired psychiatric disability, effective November 1, 2017. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.