UNSPECIFIED DEPRESSIVE DISORDER

Summary

The Veteran, who served honorably in the United States Marine Corps from August 2002 to August 2006, appeals the agency of original jurisdiction's (AOJ) reduction of his service-connected acquired psychiatric disorder rating from 70 percent to 0 percent, effective January 1, 2020. The Board of Veterans' Appeals (Board) reviewed the AOJ's decision, noting that the Veteran's rating had been in effect for five or more years, triggering the protections of 38 C.F.R. § 3.344(a). The Board found that the AOJ's reduction was based on a single January 2020 VA examination, which concluded the Veteran's unspecified depressive disorder was secondary to an antisocial personality disorder and not severe enough to warrant compensation. However, VA treatment records indicated the Veteran was still receiving medication for an adjustment disorder in August 2019. The Board determined that the AOJ failed to consider the entire record and did not demonstrate material improvement in the Veteran's ability to function under ordinary conditions. Citing precedent, the Board found the rating reduction improper because it was not based on a thorough review of the Veteran's entire history and did not show actual improvement. Consequently, the Board vacated the reduction and restored the 70 percent rating for the acquired psychiatric disorder.

Rationale

Reduction of rating was improper; AOJ failed to demonstrate material improvement; Reduction based on single examination, not entire record

Full Decision Text

Citation Nr: A26035708
Decision Date: 04/16/26	Archive Date: 04/16/26

DOCKET NO. 200622-94079
DATE: April 16, 2026

ORDER

The reduction of the Veteran's service-connected acquired psychiatric disorder from 70 percent to a noncompensable rating was improper, and restoration of a 70 percent rating for service connected acquired psychiatric disorder is warranted.

FINDING OF FACT

The evidence does not show an improvement in right ankle functioning under the ordinary conditions of life. 

CONCLUSION OF LAW

The reduction of the rating for an acquired psychiatric disorder from 70 percent to noncompensable rating, effective July 1, 2020, was improper, and the 20 percent rating is restored.  38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 4.1, 4.71a, Diagnostic Code 9440.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active-duty service in the United States Marine Corps from August 2002 to August 2006.

In a February 2020 rating decision, the agency of original jurisdiction (AOJ) proposed a decrease in the rating for an acquired psychiatric disorder from 70 percent to 0 percent. In the April 2020 rating decision, the proposed decrease was enacted with an effective date of January 1, 2020. In the June 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 2024.

Therefore, the Board may only consider the evidence of record at the time of the April 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

For a reduction of a disability rating to be proper, there are both procedural and substantive requirements that must be followed.

First, where a reduction in an evaluation is warranted, and results in a reduction of overall compensation payments, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. The Veteran must be notified of the contemplated action and the detailed reasons at the Veteran's latest address of record, be given 60 days to present additional evidence showing that compensation payments should be continued at the present level and be informed of the right to a predetermination hearing, if requested within 30 days of the date of notice. See 38 C.F.R. § 3.105(e), (i).  Here, the Board finds this element has been met. In a February 2020 proposal to reduce service connected compensation letter, the Veteran was advised that he had 60 days to submit additional evidence to show that the change should not be made. The reduction was not implemented until April 2020, more than 60 days after the February 2020 letter.

A Veteran's disability rating may not be reduced unless an improvement in the disability is shown to have occurred.  38 U.S.C. § 1155.  When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be
 1155.  When a reduction is effectuated without following the applicable regulations, the reduction is void ab initio.  See Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Prior to reducing a Veteran's disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000).

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344 (a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension.

The provisions of 38 C.F.R. § 3.344 (c) specify that these considerations are required for ratings that have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement in these disabilities will warrant a reduction in rating.

Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995).

A rating that has been in effect for five 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 provisions of 38 C.F.R. § 3.344 (a) and (b) provide greater protections to a Veteran with respect to rating reductions. As noted above, the regulation is applicable if the evaluation was in effect more than five years; otherwise, 38 C.F.R. § 3.344 (c) is applicable.

Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Veteran need not demonstrate that he is entitled to retain the higher evaluation; rather, it must be shown that it is more likely than not that the AOJ's reduction was warranted. Kitchens, 7 Vet. App. 320 (1995).

Here, the Veteran was granted service connection for an acquired psychiatric disorder with an initial rating of 70 percent and an effective date of February 2013. Therefore, the Veteran's rating had been in effect for five or more years and the provisions of 38 C.F.R. § 3.344 (a) are applicable. 

The Veteran was afforded a VA examination to assess the severity of his acquired psychiatric disorder in January 2020. The examiner found that the Veteran did not have an adjustment disorder and that his unspecified depressive disorder was secondary to an antisocial personality disorder generally not subject to service connection. As a
 not that the AOJ's reduction was warranted. Kitchens, 7 Vet. App. 320 (1995).

Here, the Veteran was granted service connection for an acquired psychiatric disorder with an initial rating of 70 percent and an effective date of February 2013. Therefore, the Veteran's rating had been in effect for five or more years and the provisions of 38 C.F.R. § 3.344 (a) are applicable. 

The Veteran was afforded a VA examination to assess the severity of his acquired psychiatric disorder in January 2020. The examiner found that the Veteran did not have an adjustment disorder and that his unspecified depressive disorder was secondary to an antisocial personality disorder generally not subject to service connection. As a result of the examination, the AOJ assigned a noncompensable rating as symptoms were not severe enough to interfere with occupational and social functioning or require continuous medication. VA treatment records show the Veteran was in receipt of medication for an adjustment disorder as recently as August 2019 prescribed by a VA physician. Therefore, the Board finds that the AOJ fulfilled the procedural requirements and that the rating reduction was based on one examination and not the entire record. As such, the Board finds the rating reduction was improper and the 70 percent rating for an acquired psychiatric disorder is restored. Schafrath, 1 Vet. App. at 595.

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jarman, Timothy

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.