Citation Nr: 21075926 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-43 794 DATE: December 21, 2021 ORDER As the reduction of the disability rating for posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) from 50 percent to 10 percent was improper, the 50 percent rating is restored effective from October 1, 2015. FINDING OF FACT The Veteran exhibited symptoms of PTSD and anxiety prior to June 2016, and it is not established that there was an actual improvement in the Veteran's psychiatric symptoms from October 1, 2015 to June 2, 2016. CONCLUSION OF LAW The reduction of the disability rating for PTSD and MDD from 50 percent to 10 percent from October 1, 2015 to June 2, 2016, was not proper. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.344, 4.130, Diagnostic Codes (DCs) 9411, 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2010 to April 2014. In December 2021, the Veteran testified at a Board hearing. Although the case was certified as on appeal from an April 2017 rating decision, the appeal of this issue arises from a July 2015 rating decision. The Veteran was notified of the July 2015 decision reducing his psychiatric disability rating in a letter that was mailed to a North Carolina address. However, at his December 2021 Board hearing, the Veteran testified that he was moving to New Jersey at that time. Additionally, June 2015 VA treatment records reflect the Veteran's address in New Jersey. The Board finds that the Veteran has rebutted the presumption of regularity of mailing practices with evidence of an incorrect address on the mailing in question. See Boyd v. McDonald, 27 Vet. App. 63, 72 (2014); see also Romero v. Tran, 33 Vet. App. 252 (2021). Thus, the Board finds that the July 2015 rating decision never become final, and the April 2017 notice of disagreement (NOD) is considered timely filed to that rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.200, 20.201, 20.202. Whether the reduction of the disability rating for PTSD and MDD of 50 percent to 10 percent from October 1, 2015 to June 2, 2016, was proper. Legal Criteria Congress has provided that a veteran's disability will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. A rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work, supported by a preponderance of the evidence. Stern v. McDonough, 34 Vet. App. 51 (2021). Moreover, a rating that has been in effect for 5 years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement. 38 C.F.R. § 3.344 (a). The 5-year period is calculated from the effective date of the rating to the effective date of the reduction. Brown v. Brown, 5 Vet. App. 413, 419 (1993). A rating becomes entitled to heightened procedural protections under § 3.344 (c) only when it has existed at the exact same percentage for at least 5 years. Simon v. Wilkie, 30 Vet. App. 403, 410 (2018). The applicability of § 3.344 is premised on how long a disability rating per VA's rating schedule has been in place, as opposed to how long some baseline symptomatology has existed. Id. at 411. Section 3.344 (a) applies when a rating exists for 5 years without changing its degree or position on the rating schedule. Id. These requirements do not apply to ratings that have not continued for long periods at the same level (five years or more) or to disabilities which have not become stabilized and are likely to improve. Rather, in such cases, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Analysis The Veteran contends that his psychiatric disability never improved, and that his PTSD symptoms were not properly considered when his rating was reduced. In April 2015, the RO proposed to reduce the Veteran's MDD disability rating, based upon an April 2015 VA examination that found there was no current evidence of symptoms of a prior diagnosis of anxiety disorder. In a July 2015 rating decision, the RO reduced the Veteran's MDD from a 50 percent rating to a 10 percent rating effective October 1, 2015. By an April 2017 rating decision, the Veteran's rating was returned to 50 percent effective August 30, 2016, based on the Veteran's intent to file of that date, and a new diagnosis of PTSD from a March 2017 VA examination. Thereafter in June 2018, the Veteran was granted an earlier 50 percent rating from June 2, 2016, based on a psychiatry note of that date. The Veteran's disability ratings were in effect for less than five years. As such, the heightened protections of 38 C.F.R. § 3.344 (a) do not apply. Nonetheless, the evidence must show that there was actually an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Overall, the Board finds that the evidence does not indicate an actual improvement in the psychiatric disability under the ordinary conditions of daily life. While the Veteran received an official diagnosis of PTSD in June 2016, it stands to reason that the now service-connected PTSD disorder existed prior to this date. Additionally, VA treatment records reflect the Veteran experiencing PTSD and anxiety symptoms during the period on appeal from October 1, 2015 to June 2, 2016 that warrant a 50% rating. Further, the Veteran's December 2021 Board hearing testimony is further probative evidence weighing against a finding that the disability actually improved during that time. Hence, the April 2015 VA examination alone does not support a reduction. As such, in interpreting the evidence and reconciling the various medical and lay reports into a consistent picture, the Board does not find that an improvement in the Veteran's psychiatric disability is shown by a preponderance of the evidence. Thus, the reduction in the disability rating for PTSD and MDD was not proper, and restoration of the 50 percent rating, effective October 1, 2015, is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.