Citation Nr: A21020196 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200518-85226 DATE: December 17, 2021 ORDER Restoration of the Veteran's 70 percent rating for a persistent depressive disorder is granted. FINDING OF FACT In an April 2020 rating decision, the Veteran's disability rating for his depressive disorder was reduced from 70 to 50 percent, effective July 1, 2020; however, giving him the benefit of the doubt, the Board finds that the evidence does not support actual improvement in his disability that will be maintained in the ordinary course of life and work. CONCLUSION OF LAW The criteria for restoration of the prior 70 percent rating for the Veteran's depressive disorder since July 1, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1967 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. A restoration of the Veteran's 70 percent rating for a depressive disorder is granted. The Veteran contends that his depressive disorder has been as severe as the 70 percent rating contemplates and should not have been reduced to 50 percent effective July 1, 2020. In a rating-reduction case, it must be determined that an improvement in a disability has actually occurred. That improvement also must reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413 (1993); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). According to 38 C.F.R. § 3.344, if doubt remains as to whether there has been material improvement in the disability that will be maintained under the ordinary conditions of life, the rating in effect shall be continued. Because of this, and after a review of the evidence, the Board finds that the rating reduction from 70 to 50 percent for depressive disorder was improper. The Board has considered the history of the Veteran's disability to determine if there was the required actual improvement in the Veteran's depressive disorder. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings represent as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38C.F.R. §4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. All reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38C.F.R. §4.3. The Veteran's persistent depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, schedule for rating mental disorders. A 50 percent evaluation is warranted when there is 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-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; the Veteran's difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when the psychiatric condition produces 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. A maximum 100 percent rating is assigned when there is total occupational or 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, DC 9411. However, the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be 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. In support of his contention that his depressive disorder has not improved, the Veteran submitted a psychological assessment from his private psychiatrist dated in March 2019. The assessment notes that the Veteran suffers from sleep impairment, intrusive thoughts, hypervigilance, and a severe impairment to his recent memory. He did not socialize and suffered from anger, sadness, and fear. He felt depressed all the time, had crying spells, and felt angry and agitated easily. He could not sustain social or work relationships. The Board notes that the Veteran's rating was reduced to 50 percent based upon a December 2018 VA examination that found that the Veteran's depressive disorder resulted in occupation and social impairment with reduced reliability and productivity. However, this same examination noted the Veteran's depressive disorder to be moderate and persistent, in line with previous assessments. The Veteran endorsed persistent depressed mood with anhedonia, sleep disturbance, and fatigue, lasting greater than two years. He also denied having friends or hobbies at this time. His wife noted that he keeps to himself often, is irritable at times, has lost interest in most things, and sleeps often. Based upon this evidence, the Board does not find evidence of actual improvement in his disability that will be maintained in the ordinary course of life and work. The Veteran's depressive disorder appears to be the same or similar to how it presented at the time of the award of the higher 70 percent rating. After weighing the evidence, the Board finds that a restoration to the previously assigned 70 percent rating is warranted. A. J. Spector Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.