MAJOR DEPRESSIVE DISORDER

Summary

The veteran, who served from August 2000 to February 2001, October 2002 to August 2004, and January 2008 to February 2009, appealed the reduction of his disability rating for recurrent major depressive disorder from 70 percent to 50 percent, effective October 1, 2021. The veteran contended that his symptoms had not improved and that his medications had been increased, leading to frequent bad days and difficulty managing his temper. He also noted suicidal ideations and marital difficulties. The Board reviewed evidence including VA treatment records, a June 2019 VA examination, and a July 2021 private disability benefits questionnaire (DBQ). The June 2019 VA exam suggested symptoms met criteria for a 30 percent rating, but the Board found it also indicated symptoms supporting a higher rating, like impaired impulse control. The July 2021 private DBQ and the veteran's testimony indicated symptoms consistent with a 70 percent rating, including suicidal ideations and frequent panic attacks. The Board found the veteran's lay statements credible and noted that his medication dosage had been increased due to lack of symptom improvement. Applying the benefit of the doubt, the Board concluded the reduction was improper and restored the 70 percent rating.

Rationale

Veteran's symptoms did not improve; Met criteria for 70 percent rating; Benefit of the doubt applied

Full Decision Text

Citation Nr: A26038452
Decision Date: 04/24/26	Archive Date: 04/24/26

DOCKET NO. 210910-185597
DATE: April 24, 2026

ISSUE

The propriety of the rating reduction from 70 percent to 50 percent, effective October 1, 2021, for recurrent major depressive disorder.

ORDER

The reduction in rating of the service-connected recurrent major depressive disorder from 70 percent to 50 percent, effective October 1, 2021, was improper; the 70 percent rating is restored, effective, October 1, 2021. 

FINDINGS OF FACT

1. A July 2019 rating decision proposed to reduce the Veteran's rating for recurrent major depressive disorder; the accompanying notice informed the Veteran of the 60-day period for the submission of evidence, and of the right to request a predetermination hearing within 30 days.

2. In July 2021, the Veteran was notified of the rating decision implementing the final reduction in the rating assigned for recurrent major depressive disorder from 70 percent to 50 percent, effective October 21, 2021.

2. Resolving doubt in the Veteran's favor, at the time of the July 2021 rating decision, the medical and lay evidence concerning the Veteran's recurrent major depressive disorder indicates that the Veteran's symptoms had not improved.  Prior to the rating decision on appeal, the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas.  

CONCLUSION OF LAW

8. The reduction in the rating for lumbosacral strain from 70 percent to 50 percent effective October 1, 2021, was improper; the criteria for restoration of the 70 percent rating, effective October 1, 2021, has been met.  38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 3.344, 4.1, 4.2 4.3, 4.7, 4.130, Diagnostic Code 9434.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service from August 2000 to February 2001; October 2002 to August 2004 and from January 2008 to February 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2021 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 

In the September 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302(a).

In August 2022, the Veteran testified before a Veterans Law Judge (VLJ).  A copy of the transcript has been associated with the Veteran's electronic claims folder. 

The propriety of the rating reduction from 70 percent to 50 percent, effective October 1, 2021, for recurrent major depressive disorder

The Veteran contends that the rating reduction was improper because his major depressive disorder symptoms have not improved and his doctors have actually increased his medications. See Board Hearing Transcript, p. 4.  Specifically, the Veteran testified that he was prescribed Venlafaxine to treat his psychiatric symptoms and started at a 75 milligram (mg) dosage, but later that dosage was increased to 125 mg and then 150 mg.  Id. He testified that he has bad days and "really bad days," and not a lot of good days.  Id. at 5.  Finally, he testified that he was going through a divorce from his spouse; had history of violence towards her and thoughts of harming himself.  Id. at 5-6.  For the reasons explained below, the Board finds that the rating reduction was improper and restoration of the 70 percent rating is appropriate. 

To warrant reduction in rating, it must be shown that the weight of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required.  See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

The Board notes that a rating reduction is governed by 38 C.F.R. § 3.105 (e)
6.  For the reasons explained below, the Board finds that the rating reduction was improper and restoration of the 70 percent rating is appropriate. 

To warrant reduction in rating, it must be shown that the weight of the evidence supports the reduction itself, and with application of the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107 (b) as required.  See Brown v. Brown, 5 Vet. App. 413, 420-21 (1993); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

The Board notes that a rating reduction is governed by 38 C.F.R. § 3.105 (e) and the regulation contains its own notice and due process requirements before a rating reduction can be implemented. When the procedures of 38 C.F.R. § 3.105 (e) are applicable, VA must comply with the provisions rather than the notice and duty provisions in the VCAA. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); Brown v. Brown, 5 Vet. App. 513 (1993).

The Board acknowledges well-established case law indicating that VA cannot reduce a veteran's disability evaluation without first finding, inter alia, that that an improvement has actually occurred in the Veteran's service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown, 5 Vet. App. at 421. Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown 5 Vet. App. at 420-22.

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320 (1995).

Ratings that have not continued for periods of five years or more at the same level or to disabilities which have not become stabilized and are likely to improve do not have same protections. Rather, in such cases, reexaminations of such disabilities disclosing improvement, physical or mental, will warrant a rating reduction. 38 C.F.R. § 3.344 (c).

A 70 percent rating is assigned for 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 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened effect; 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; difficulty in establishing and maintaining effective work and social relationships.

Although the 50 percent rating criteria contemplate deficiencies in "motivation or mood," such deficiencies must be "due to" the symptoms listed for that rating level, "or others or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed mood, and because the 50 percent level contemplates a deficiency in "mood" among other areas, does not mean his PTSD rises to the 50 percent level. Indeed,
 tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

Although the 50 percent rating criteria contemplate deficiencies in "motivation or mood," such deficiencies must be "due to" the symptoms listed for that rating level, "or others or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). That is, simply because this Veteran has depressed mood, and because the 50 percent level contemplates a deficiency in "mood" among other areas, does not mean his PTSD rises to the 50 percent level. Indeed, the 30 percent, 50 percent, and 70 percent criteria each contemplate some form of mood impairment.  See Vazquez-Claudio, supra.  The Board, instead, must look to the frequency, severity, and duration of the impairment.

The Veteran was granted a 70 percent rating for his recurrent major depressive disorder, effective July 2018. 

In July 2019, the RO proposed to decrease the Veteran's rating for his major depressive disorder from 70 percent to 50 percent.

In July 2021, the RO decreased the Veteran's rating from 70 percent to 50 percent, effective October 1, 2021. 

Based on the foregoing, the Board finds that the protections afforded to Veteran for ratings in effect for 5 years or more are not applicable. 

February 2019 VA treatment records indicate that the Veteran reported a recent domestic violence incident with his spouse the night before - the second occurrence in the 2 12 year long marriage.  The Veteran reported chronic difficulties with anger management.  The Veteran reported that the Venlafaxine medicine dosage of 75 mg three times daily didn't appear to be working.  The Veteran's clinician increased his dosage to 300 mg (150mg twice daily).

In June 2019, the Veteran was afforded a VA examination where the examiner opined that the Veteran suffered from occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication (30 percent criteria).  The Veteran reported recently going on a cruise with his spouse; attending sporting events with his kids and playing video games.  He reported that he sometimes clashes with his older child and spouse.  He reported that his temper was the primary impediment to his inability to work and caused conflicts at home.  The Veteran reported attending anger management classes.  The examiner noted that the Veteran suffered from symptoms of depressed mood; anxiety; mild memory loss; disturbances of motivation and mood; and impaired impulse control.  

October 2020 VA treatment records indicates that the Veteran was being treated with Venlafaxine at a 300 mg dosage (2 capsules of 150mg). 

In July 2021, the Veteran submitted a private disability benefits questionnaire (DBQ) where the clinician noted that the Veteran suffered from occupational social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood (70 percent criteria). The clinician noted that the Veteran suffered from symptoms such as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near continuous panic affecting the ability to function independently; chronic sleep impairment suicidal ideations; disturbances of motivation and mood and impaired judgment. 

Based on the foregoing, the Board finds that the 70 percent rating is the most appropriate rating based on the medical evidence and the Veteran's lay statements.   In that regard, although the June 2019 VA examination report indicated that the Veteran's recurrent major depressive disorder symptoms only met the criteria for a 30 percent rating, the report as a whole indicates symptoms that support a higher rating, such as evidence of impaired impulse control.  Further VA treatment records from earlier in the year indicate that the Veteran had his psychotropic medicine dosage increase due to lack of improvement of symptoms.  The Board assigns probative value to the VA treatment records and the July 2019 report, read in its entirety.  

Further, the July 2021 DBQ indicates that the Veteran meets the criteria for a 70 percent rating.  The clinician noted symptoms which more closely approximate the criteria for a 70 percent criteria, including suicidal ideations, frequent panic attacks and impaired judgement.  The Board assigns probative value to the Veteran's lay statements noted in the July 2021 DBQ in addition to the clinician's assessments of the Veteran's current severity meeting the criteria for a 70 percent rating. 

Finally, the Board assigns probative value to the Veteran's lay statements at the Board hearing which indicate that his symptoms have not improved, effective the date of the reduced rating.  The Veteran reported bad and
 report, read in its entirety.  

Further, the July 2021 DBQ indicates that the Veteran meets the criteria for a 70 percent rating.  The clinician noted symptoms which more closely approximate the criteria for a 70 percent criteria, including suicidal ideations, frequent panic attacks and impaired judgement.  The Board assigns probative value to the Veteran's lay statements noted in the July 2021 DBQ in addition to the clinician's assessments of the Veteran's current severity meeting the criteria for a 70 percent rating. 

Finally, the Board assigns probative value to the Veteran's lay statements at the Board hearing which indicate that his symptoms have not improved, effective the date of the reduced rating.  The Veteran reported bad and even worse days, with very few good days.  This is supported by VA treatment records which indicate that the Veteran was going through a divorce; history of domestic violence against his spouse and frequent inability to control his angry outbursts/temper. 

Resolving doubt in the Veteran's favor, the Board finds that the Veteran's symptoms met the criteria for a 70 percent rating prior to the July 2021 rating decision that reduced the rating.  

Therefore, the Board finds that that the reduction from 70 percent to 50 percent for the Veteran's recurrent major depressive disorder was improper and the 70 percent rating must be restored.  Therefore, the appeal is granted.

 

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Baskerville, L.

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.