BVA9503040 DOCKET NO. 92-13 692 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to restoration of a 100 percent rating for schizophrenia. 2. Entitlement to a total rating based upon unemployabiity per 38 C.F.R. § 4.16(c). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from January 1974 to August 1975. This appeal arises from a January 1992 rating decision of the Cleveland, Ohio, Regional Office (RO) which reduced a 100 percent disability evaluation for schizophrenia, in effect from March 3, 1981, effective from April 1, 1992. The case was previously before the Board in November 1993 when it was remanded for further development. The veteran was represented in his appeal by Military Order of the Purple Heart but is now represented by Disabled American Veterans. The case is now ready for appellate review. The Board notes that the issue of entitlement to a total disability rating for compensation purposes based on individual unemployability per 38 C.F.R. § 4.16(c) (1993) which was denied by the RO in May 1994 is moot in light of the Board's action regarding an increased schedular rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in reducing the disability evaluation for schizophrenia from 100 percent to 70 percent. The veteran contends, essentially, that his current symptomatology indicates that a 100 percent disability evaluation is warranted for his schizophrenia. He asserts that he has been unable to obtain or maintain employment for several years. His representative alleges that the January 1992 reduction of the veteran's disability evaluation was improper. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports the restoration of a 100 percent rating for the veteran's schizophrenia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The clinical evidence of record at the time of the January 1992 rating action fails to demonstrate sustained material improvement in the veteran's schizophrenia. 3. The RO's January 1992 rating action reducing the disability evaluation for schizophrenia from 100 percent to 70 percent was void ab initio as not in accordance with the law. CONCLUSION OF LAW The schedular and other pertinent criteria for a restoration of a 100 percent schedular disability evaluation for the veteran's schizophrenia have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.343(a), 3.344(a), 4.3, 4.7, Part 4, Diagnostic Code 9203 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of veterans Affairs (VA) has properly assisted him in the development of his claim. A :well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. I. Historical Review The veteran stated that he saw a psychiatrist in service. He was diagnosed with schizophrenia within one year following service. In March 1976, service connection was established for schizophrenia and a 30 percent disability evaluation was assigned, effective from August 20, 1975. The veteran was hospitalized at a VA medical facility for treatment of schizophrenia, paranoid type, from February to June 1976. In March 1977, the RO assigned a 100 percent disability evaluation due to hospitalization from February 22, 1976, returning to the 30 percent disability evaluation, effective from July 11, 1976. The veteran underwent a VA psychiatric examination in January 1978. The diagnosis was schizophrenia, paranoid type, competent. In December 1979, the veteran was rehospitalized for treatment of paranoid schizophrenia. When examined by the VA in February 1980, it was noted the veteran remained paranoid and disturbed with pronounced sociopathic traits. The examiner indicated it was hard to assess how much of his symptoms were due to elicit drugs and that the veteran was poorly motivated to take medications or go to work. In March 1981, the veteran's disability evaluation for schizophrenia was increased to 70 percent, effective from January 18, 1878, and a 100 percent disability evaluation was assigned from March 3, 1981. He had been receiving unemployability benefits from January 1978 until March 2, 1981. At a VA examination in February 1982, the examiner indicated there was no evidence of thought process disorder or overt psychosis. He noted that the veteran's psychiatric history presented no evidence of psychotic episodes prior to his first hospitalization in January 1976 or following the discontinuance of his medication. He stated that the veteran appeared to be primarily dependent on alcohol. The diagnosis was substance abuse disorder, alcohol dependence. In April 1982, the RO proposed to reduce the veteran's evaluation to 70 percent, effective from July 1982. A psychiatric report from Jacob Mann, M.D., dated May 1982, diagnosed schizophrenia, schizo-affective type, with strong paranoid overlay and secondary alcoholism. He indicated the veteran showed evidence of further deterioration and was still mentally ill. A psychological report from Stanley M. Zupnick, Ph.D., dated in January 1983, indicated the veteran still had severe emotional difficulties. The diagnosis was schizophrenia, paranoid type, and alcoholism, in remission. In March 1983, the RO continued the 100 percent disability evaluation, effective from March 1981. At a VA examination in January 1985, the examiner indicated that the veteran was definitely not employable. In July 1986, the veteran admitted to auditory hallucinations in the past and occasionally in the present. He had difficulty controlling his behavior, became violent easily, and admitted to suicidal thoughts. He showed poor concentration, was withdrawn, and insight and judgment were questionable. The veteran was on Mellaril. In May 1989, the veteran indicated he was on Navane and Xanax. The examiner indicated the veteran had been unemployed for the last 10 years and was considered unemployable. At a VA psychiatric examination in July 1991, the veteran stated that he heard strange voices criticizing him, making fun of him, and that people tried to influence his mind and terminate him. He stated that he was on Navane, 10 milligrams daily. During the mental status examination, the veteran was rather evasive and repeatedly looked around suspiciously. He admitted auditory hallucinations and bizarre delusional ideations. His affect was inappropriate and blunted. There was moderate anxiety. Intellect was not grossly impaired and memory was fairly well preserved. Both insight and judgment were definitely distorted. The diagnoses included: Axis I, schizophrenia, paranoid, subchronic; and Axis V, definite impairment in psychosocial functioning. The veteran was considered competent. In July 1991, the RO proposed reducing the veteran's disability evaluation for his schizophrenia from 100 percent to 70 percent. In October 1991, the veteran testified before a hearing officer at the RO. He testified that: he had not worked since 1979; he lived alone in a home he recently purchased; he had few friends, no girlfriends; his social activities were limited; he had reduced drinking; he avoided crowds; he had some suicidal thoughts; he sometimes still heard voices; he had trouble sleeping; he gets into a lot of arguments with people. The veteran also submitted outpatient treatment records dating from June 1990 to September 1991 which showed continuing treatment for schizophrenia. The veteran's status was generally noted to be stable. In January 1992, the RO reduced the veteran's disability evaluation to 70 percent, effective from April 1, 1992. Outpatient treatment records dating from September 1991 to February 1992 show complaints of decreased appetite, poor sleep and paranoia. The veteran was awaiting sentencing regarding drunk driving problems. He was noted to be anxious and on several medications. Further outpatient treatment records dating to April 1993 show no hallucinations or ideations. The veteran was noted to be stable with mild paranoia in September 1992. II. Restoration Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). A 100 percent evaluation for schizophrenia, paranoid type, requires active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. A 70 percent evaluation is warranted for schizophrenia, paranoid type, which is less than that required for a 100 percent evaluation, but which nevertheless produces severe impairment of social and industrial inadaptability. The Board has weighed both the probative evidence of record and the veteran's argument on appeal;. We observe that the veteran's service-connected psychiatric disorder had been evaluated as 100 percent disabling under the provisions of 38 C.F.R. Part 4, Diagnostic Code 9203 (1993) until the RO issued its January 1992 decision reducing the veteran's disability evaluation to 70 percent. The RO's determination was based upon the July 1991 VA psychiatric examination, VA outpatient treatment records dated from May 1990 to September 1991, and October 1991 hearing at the RO. We must consider the provisions of 38 C.F.R. §§ 3.343(a) and 3.344(a) (1993). Those regulations state, in pertinent part, that: Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a) (1993). Rating agencies will handle cases affected by medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. . . . Moreover, although material improvement in the physical or mental condition is clearly reflected the rating agency will be considered whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (1993). The Board further observes that the provisions of 38 C.F.R. § 3.344(c) (1993) limit the application of 38 C.F.R. § 3.344(a) (1993). That regulation provides, in pertinent part, that: The provisions of paragraphs (a) and (b) of this section apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvements, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c) (1993). The Board has made a careful longitudinal review of the record. In applying the cited regulations to the veteran's claim, we find that the reduction of the veteran's disability evaluation was improper. We note that the outpatient treatment records show continuing biweekly outpatient visits which noted that the veteran did not work and required several medications. We also observe that the July 1991 VA examination report indicated a diagnosis of schizophrenia. The veteran had an inappropriate and blunted affect, moderate anxiety and definite distortion of insight and judgment. The veteran also admitted to auditory hallucinations and bizarre delusional ideations. The clinical evidence of record at the time of the RO's January 1992 rating decision, clearly failed to indicate material improvement in the veteran's mental condition including improvement under the ordinary conditions of life such as working or actively seeking work. 38 C.F.R. § 3.343(a) (1993). We observe that the United States Court of Veterans Appeals (Court) has held that where 38 C.F.R. § 3.343(a) (1993) is not applied, the decision to reduce the veteran's disability rating will be found void ab initio as not in accordance with the law. Dofflemeyer v. Derwinski, 2 Vet.App. 277, 282 (1992). We note also that additional clinical evidence is of record following the January 1992 rating decision. However, such evidence may not be used to resurrect a flawed rating. As the RO failed to apply the provisions of 38 C.F.R. §§ 3.343 and 3.344 (1993) in its reduction of the veteran's disability evaluation for schizophrenia from 100 percent to 70 percent, we find that the January 1992 rating decision was void ab initio as not in accordance with the law, and thus the Board has no legal option but to restore the 100 percent schedular rating. . ORDER A 100 percent schedular evaluation for schizophrenia is restored subject to the laws and regulations governing the grant of monetary benefits. E. W. SEERY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.