DEPRESSIVE DISORDER

Summary

The veteran, who served from December 1971 to December 1973, appeals a reduction in his disability rating for depressive disorder. The Department of Veterans Affairs (VA) had initially granted service connection for depressive disorder in April 2014 with a 70 percent rating, increased it to 100 percent in August 2016, and then reduced it to 30 percent in April 2020, effective August 1, 2020. The veteran argued that his condition had not improved and the reduction was inappropriate. The Board of Veterans' Appeals reviewed the reduction based on established legal precedents, including Brown v. Brown and 38 C.F.R. § 3.344, which require VA to demonstrate sustained improvement and an actual change in the veteran's ability to function before reducing a rating, especially for conditions rated at 100 percent. The Board found that the April 2020 reduction was improper because VA failed to demonstrate sustained improvement or address the veteran's ability to function under ordinary conditions. Furthermore, the 100 percent rating had been in place for less than five years, triggering specific protections under 38 C.F.R. § 3.344(a) and (b) which were not met. The veteran testified at a hearing that his condition had not improved. Consequently, the Board found the reduction void ab initio and restored the 100 percent rating for depressive disorder, effective August 1, 2020.

Rationale

Reduction in rating from 100% to 30% was improper.; VA failed to demonstrate sustained improvement.; VA failed to address ability to function under ordinary conditions.; Rating reduction void ab initio.

Full Decision Text

Citation Nr: A26040903
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 210203-138511
DATE: April 30, 2026

ORDER

The reduction in rating from 100 percent disabling to 30 percent, effective August 1, 2020 for depressive disorder was improper and the 100 percent rating is restored. 

FINDINGS OF FACT

1. At the time of the April 2020 rating decision, which reduced the Veteran's rating for his depressive disorder from 100 percent to 50 percent, the Veteran had been in receipt of the 100 percent rating for less than five years.

2. The rating reduction for the depressive disorder did not comport with applicable statutes and regulations. 

CONCLUSION OF LAW

The criteria for restoration of the 100 percent rating for the depressive disorder, effective August 1, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.130, Diagnostic Code 9434.  

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active military service from December 1971 to December 1973.     

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision issued by the Department of Veterans Affairs (VA). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.  

In the February 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified before a Veterans Law Judge at a hearing on October 31, 2024; a hearing transcript has been associated with the claims file. Therefore, the Board may only consider the evidence of record at the time of the April 2020 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). 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. 

Reduction in Rating Criteria

Where a reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons.  The AOJ must also notify the veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § § 3.105(e).  As the Board finds that the reductions were improper for other reasons, it is unnecessary to discuss this issue further. 

In Brown v. Brown, 5 Vet. App. 413 (1993), the United States Court of Appeals for Veterans Claims (Court) identified general regulatory requirements that are applicable to all rating reductions, including those which have been in effect for less than five years.  Id. at 417.  Pursuant to 38 C.F.R. § § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.  Id. at 420.  Similarly, 38 C.F.R. §§ 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present."  Id.  The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a veteran's disability.  Id. 

Furthermore, the rating agency
.F.R. § § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history.  Id. at 420.  Similarly, 38 C.F.R. §§ 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present."  Id.  The Court has held that these provisions "impose a clear requirement" that rating reductions be based on the entire history of a veteran's disability.  Id. 

Furthermore, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.  38 C.F.R. § 4.13.  Additionally, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work.  See Brown v. Brown, 5 Vet. App. at 420-421; see also 38 C.F.R. § §§ 3.344(c), 4.2, 4.10.  A claim as to whether a rating reduction was proper must be resolved in the Veteran's favor unless VA concludes that a fair preponderance of evidence weighs against the claim.  Brown v. Brown, 5 Vet. App. at 421.

When VA reduces a veteran's disability rating without observing applicable laws and regulations, the rating is void ab initio and not in accordance with the law.  See Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (citing Kitchens v. Brown, 7 Vet. App. 320, 325 (1995)).

The reduction in rating from 100 percent disabling to 30 percent, effective August 1, 2020 for depressive disorder was improper and the 100 percent rating is restored. 

The Veteran asserts that his depressive disorder did not improve and so, the reduction in his rating was not appropriate.  

By way of background, the Veteran was granted entitlement to service connection for depressive disorder in an April 2014 rating decision, and the AOJ assigned a 70 percent rating, effective March 19, 2014.  In an August 2016 rating decision, the AOJ assigned an increased 100 percent rating, effective July 15, 2016.  In an April 2020 rating decision, the AOJ reduced the Veteran's depressive disorder from 100 percent to 30 percent, effective August 1, 2020, based on an August 2018 VA examination report.  

In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344(a) and (b).  However, these provisions do not apply in this case because the Veteran's 100 percent rating was in place for less than five years when the reduction took effect.

Additionally, it is well established that VA cannot reduce a veteran's disability evaluation without first finding, inter alia, 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 v. Brown, 5 Vet. App. 413, 421 (1993).  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.  Finally, 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).

Here, the Board finds that the reductions are void because the provisions of 38 C.F.R. § 3.344 were not met.  In this regard, the April 2020 rating decision did not find that the record demonstrated sustained improvement and the AOJ did not address whether any improvement in the
.13; see also Brown, 5 Vet. App. at 420-22.  Finally, 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).

Here, the Board finds that the reductions are void because the provisions of 38 C.F.R. § 3.344 were not met.  In this regard, the April 2020 rating decision did not find that the record demonstrated sustained improvement and the AOJ did not address whether any improvement in the disability actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Additionally, the record does not show that the Veteran has demonstrated sustained improvement. Rather, at the October 2024 Board hearing, the Veteran testified that his condition had not improved and that he continued to be unemployed and had no friends.    

The Board emphasizes that failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio.  Such an omission is error and not in accordance with the law.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).  

Given the above, the Board finds that the reduction from 100 percent to 30 for the Veteran's service-connected depressive disorder effective August 1, 2020, was improper.  Accordingly, the 100 percent rating for the depressive disorder is restored, effective August 1, 2020.  

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher O'Donnell, 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.