Citation Nr: 0001989 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 84-13 905 ) DATE ) RECONSIDERATION ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to restoration of a 100 percent rating for service-connected schizophrenia. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Esq. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from January 1971 to March 1972. This matter came to the Board of Veterans' Appeals (Board) from a June 1983 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which determined that the veteran, who was then in receipt of a 100 percent evaluation for schizophrenia, no longer met the requirements for a 100 percent evaluation for this service-connected disability. The RO therefore reduced the evaluation to 70 percent, effective from September 1, 1983, and on July 26, 1984, the Board affirmed the RO's June 1983 rating decision. In April 1999, the appellant's attorney filed a motion for reconsideration of the Board's July 1984 decision. In an October 1999 order, the motion was granted as to the Board decision of July 26, 1984, on the issue of entitlement to an increased rating for schizophrenia, undifferentiated type, by the authority granted in 38 U.S.C.A. § 7103(b) to the Deputy Vice Chairman by direction of the Chairman of the Board, and it was ordered that the decision be reconsidered by an expanded reconsideration panel as provided by Section 7102(b) of Title 38, United States Code. The Board is required by law to proceed in a case under reconsideration as though the initial decision had never been entered and, instead, to conduct a de novo review, based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C.A. §§ 7103(b)(3), 7104(a) (West 1991 & Supp. 1999); VA O.G.C. Prec. 89-90, 56 Fed. Reg. 1225 (1991); Boyer v. Derwinski, 1 Vet. App. 531 (1991). The case is now before the expanded reconsideration panel of the Board. The decision of this panel will replace the Board's July 1984 decision and will constitute the Board's final decision. Finally, the Board notes that a new claim for a total disability rating based on individual unemployability due to service-connected disabilities has been developed for current appellate consideration. However, in light of the Board's decision to grant restoration of the 100 percent schedular rating for schizophrenia, the Board finds that this appeal has been subsumed by the panel's reconsideration decision. 38 C.F.R. § 4.16(a) (1999). FINDING OF FACT Material improvement in the veteran's schizophrenia was not shown so as to justify the RO's June 1983 reduction of the schedular rating for this service-connected disability from 100 percent to 70 percent, effective from September 1, 1983. CONCLUSION OF LAW A 100 percent schedular rating for the veteran's service- connected schizophrenia is restored, effective from September 1, 1983. 38 U.S.C. § 355 (1982); 38 C.F.R. § 3.343, Part 4 (1984). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 355; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce complete social and industrial inadaptability will be assigned a 100 percent disability rating; when lesser symptomatology such as to produce severe impairment of social and industrial adaptability is manifested, a 70 percent disability rating will be assigned. 38 C.F.R. § Part 4, Diagnostic Code 9204 (1984). In a July 1975 rating decision, the RO granted the veteran a total disability rating for compensation purposes based on individual unemployability (TDIU), effective from January 1975. The only service-connected disability was schizophrenia, evaluated as 70 percent disabling. In a May 1977 rating decision, the RO continued the TDIU, and in a February 1981 rating decision, the RO terminated the TDIU and assigned a 100 percent schedular rating for schizophrenia, effective from February 17, 1981. As was noted previously, a June 1983 rating decision reduced the evaluation for schizophrenia from 100 percent to 70 percent, effective from September 1, 1983. The July 1984 rating decision did not set forth 38 C.F.R. § 3.343(a), nor specifically consider this regulation in reaching its decision. At the time of the June 1983 RO decision, 38 C.F.R. § 3.343(a) provided that a schedular 100 percent service- connected disability rating would not be reduced, in the absence of clear error, without examination showing material improvement in the mental condition. It further provided that examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and that consideration must be given to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms had been brought under control by prolonged rest, or generally, by following a regimen which precluded work, and if the latter, reduction would not be considered pending reexamination after a period of employment for three to six months. VA psychiatric examination in April 1983 revealed that the veteran complained of depression and auditory hallucinations. Mental status examination revealed that the veteran was oriented in all spheres, and was cooperative during the interview, speaking both logically and coherently. He was noted to be friendly, relaxed and socially appropriate and reported that he was in the process of starting his own auto mechanics shop. He also reported having a few friends and getting together with family members. His mood was neither depressed nor elated, and the examiner did not find him to be significantly anxious, and no constriction of affect was noted. There was no evidence of psychotic thinking or behavior except for the veteran's report of having frequent auditory hallucinations. The diagnosis was schizophrenia, paranoid type, chronic, in remission. The examiner also commented that, in light of the veteran's reported efforts and failure to work and/or to obtain vocational training, it was considered highly unlikely that this pattern would change, and the examiner described the veteran's industrial impairment as severe and his social impairment as moderate. II. Analysis As was noted above, at the time of the rating decision in June 1983, the RO did not consider 38 C.F.R. § 3.343(a) in determining that the veteran no longer met the requirements for a 100 percent schedular rating for his service-connected schizophrenia. Moreover, the Board has reviewed the June 1983 rating decision and concluded that the RO neither specifically nor implicitly found material improvement in the veteran's mental condition based on all the facts that were then of record. In addition, there is also no indication that the RO addressed whether any improvement in the veteran's condition was attained under the ordinary conditions of life, i.e., while working or actively seeking work, or instead occurred by virtue of following a regimen which precluded work, each of which were material issues of fact required by 38 C.F.R. § 3.343(a). The Board further notes that in the latter case, no reduction was to be considered until an examination following an employment period of three to six months. Consequently, as the Board has found that the determination of the RO that the veteran no longer met the requirements for a 100 percent schedular rating for schizophrenia was not in compliance with the considerations set forth in 38 C.F.R. § 3.343(a), the Board finds that restoration is warranted for the veteran's 100 percent schedular rating for his service- connected schizophrenia, effective from September 1, 1983. ORDER The restoration of the veteran's 100 percent schedular rating for schizophrenia is granted, effective on and after September 1, 1983, subject to the applicable provisions pertinent to the disbursement of monetary funds. WAYNE M. BRAEUER HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals BARRY F. BOHAN Member, Board of Veterans' Appeals JANE E. SHARP MARY M. SABULSKY Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals RONALD R. BOSCH Member, Board of Veterans' Appeals