BVA9506188 DOCKET NO. 93-08 812 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUE 1. Entitlement to restoration of a 70 percent rating for post- traumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 70 percent for PTSD. 3. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. E. Harrison, Associate Counsel INTRODUCTION The veteran had active military service from September 1966 to April 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1991 rating decision by the RO. The only issue developed and certified for appellant review is the issue of restoration of a 70 percent rating for PTSD. However, additional issues of entitlement to increased rating above 70 percent and to a total rating based on individual unemployability are addressed under the heading REMAND hereinbelow. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his PTSD is severe and warrants no less than a 70 percent evaluation. He argues that the July 1991 rating decision to reduce his rating from 70 to 50 percent for PTSD 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. 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 evidence of record supports the restoration of a 70 percent rating for PTSD. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. By a rating decision of February 1986, a 70 percent rating was assigned for PTSD under Diagnostic Code 9411, effective from January 2, 1985. 3. Sustained material improvement in the social and industrial impairment caused by PTSD was not demonstrated to warrant reduction to 50 percent on October 1, 1991. CONCLUSION OF LAW Restoration of a 70 percent rating for PTSD is warranted inasmuch as a reduction of the rating was improper. 38 U.S.C.A. § 1155, 5107, 7104 (West 1991); 38 C.F.R. § 3.344 and Part 4, Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background. In September 1983 the veteran was awarded service connection for PTSD and a 10 percent rating was assigned, effective from July 15, 1981. A February 1986 rating decision increased the rating to 70 percent, effective from January 2, 1985. In a November 1990 letter by the RO the veteran was told that he would have to undergo a VA examination to determine whether his disability had improved. The veteran had the examination on December 1990. On review of the examination report in May 1990, the rating Board proposed that the rating be reduced. Pursuant to the requirements of 38 C.F.R. § 3.105(e) (1994), the veteran was notified in writing of the proposed action and given an opportunity to respond. The rating decision of July 1991 effectuated the reduction to 50 percent effective on October 1, 1991. The assignment of a 70 percent rating in February 1986 was based primarily on a statement by a VA psychologist who indicated that the veteran's PTSD was at a severe level, a VA examination and the testimony of the veteran at an October 1985 hearing, at which he related his difficulty in socializing, adjusting to the outside world and his difficulty in maintaining employment. A VA examination of December 1985 reported that the veteran had an inability to adjust to everyday normal life and his sleep was disturbed by vivid nightmares. It was also reported that the veteran was sensitive to noise, experienced guilty feelings, and had a short attention span and paranoid feelings. On mental status examination, it was reported that the veteran was neatly dressed; mood was flat; and memory was patchy for past events. The veteran denied hallucinations but admitted to suicidal urge and homicidal thoughts. It was also reported that the veteran was sometimes very angry against authority, his concentration was questionable, he had difficulty in controlling his behavior, his self esteem was low and insight and judgment were poor to questionable. In March 1986, the veteran submitted outpatient treatment reports of 1985 and 1986 which showed that the veteran had increased fear, anger, mistrust and potential for acting out. He reported suicidal thoughts and indicated concern for his children, welfare, job, dreams and nightmares. He also reported being quite angry and bitter. The veteran reported at a December 1987 VA examination that he found it very difficult being with others and that he spends most of his time alone. He also reported that he last worked approximately nine months prior to having his motorcycle accident. He denied having flashbacks or nightmares about combat. The veteran reported that his personality changed after Vietnam in that he was withdrawn, had trouble controlling his anger and was violent. On mental status examination the examiner reported that the veteran's speech was pressured and tangential at times; that he appeared to engage in considerable denial of symptoms and appeared to play his symptoms down; that he tended to be a little paranoid, jealous and suspicious and felt that he could not trust people; that his memory and orientation appeared in tact; that his judgment appeared impaired at times; and that his insight appeared adequate. The diagnosis was PTSD without current nightmares or flashbacks but with a continuance of personality change. The July 1991 rating decision which reduced the rating to 50 percent was based on a VA examination of December 1990. The examination indicated the veteran still had some survival guilt and nightmares about Vietnam. He had no flashbacks but occasionally had intrusive thoughts about Vietnam. He felt detached and isolated in a group and stated he would rather be by himself. He complained of being restless and irritable and depressed. There were no suicidal thoughts or attempts. He also complained of having trouble controlling his anger and of being violent. He stated that he had trouble concentrating and indicated that he was unemployed and had not worked since about 1983. The examiner reported that the veteran's affect was blunted but appropriate; his hands were shaky and the nails were bitten and palms were moist; the veteran was tense and his speech was somewhat pressured; he was completely oriented; and remote memory was intact and judgment and insight were good. The diagnosis was PTSD, with marked industrial and social impairment. In July 1991 the veteran submitted a February 1991 letter by Walter P. Knake, Jr., Ph.D. The letter stated that the veteran had PTSD and dementia associated with brain trauma which was also chronic and severe. The veteran testified at a November 1992 hearing that he did not get treatment for his PTSD and indicated that he last worked around 1985. A January 1993 hearing officer's decision continued the reduced rating of 50 percent. His decision was based on the veteran not being in treatment or taking medication for his PTSD and a VA examination which showed the veteran to be fully alert, oriented, relevant, coherent with no impairment in intellect. Analysis. The 70 percent rating in effect from January 1985, was assigned under Code 9411 of the 1945 VA Schedule for Rating Disabilities. Diagnostic Code 9411 states if the ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment a 70 percent rating may be granted. A 50 percent rating may be granted when the ability to establish or maintain effective or favorable relationships with people is considerably impaired and where by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment. 38 C.F.R. § 4.132, including Code 9411 (1994). Reduction of a prior service-connected disability rating must conform to the requirements of 38 C.F.R. § 3.344 (1994). Specifically, this section provides inter alia: ...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....Examinations less full and complete than those on which payments were authorized or continued will not be used as the basis for reduction. Ratings on account of disease subject to temporary and episodic improvement e.g....psychoneurotic reaction...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, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. Since PTSD is categorized as a psychoneurotic reaction, the veteran's disability rating cannot be reduced solely on the examination of December 1990 in the absence of a showing of sustained material improvement. Upon review of all the evidence of record, it is clear that material improvement in the overall level of disability resulting from PTSD had not been documented. In fact, in a February 1991 letter to the RO, Walter P. Knake, Jr., Ph.D. suggested that the veteran's mental disease was chronic and severe. Therefore, the RO's reduction is not sustainable under the evidentiary standard imposed by the regulation. Given the nature of the evidence at the time of the actual reduction, the Board finds that the action is void ab initio. Murincsak v. Derwinski, 2 Vet.App. 363 (1992). ORDER Restoration of a 70 percent disability rating for PTSD is granted, subject to the criteria governing the payment of monetary awards. REMAND The evidence of record raises the issues as to whether the veteran is entitled to a rating in excess of 70 percent or to a total rating based on individual unemployability as a result of his PTSD. In a November 1992 hearing the veteran testified that he had not worked since 1985. A February 1991 letter from Walter P. Knake, Jr., Ph.D. stated: I evaluated [the veteran] on 12/2/86. He is service-connected for [PTSD]. In addition, he suffered a head injury secondary to an accident on a motorcycle. I gave him an additional diagnosis of Dementia Associated with Brain Trauma which is also chronic and severe. It is my strong recommendation that he be considered for an increase of disability to 100% due to both conditions. He is most definitely unemployable. Prognosis for employability is not good. The above evidence raises the question of whether the veteran is unemployable and if so whether he is unemployable due to his service-connected PTSD rather than his nonservice-connected dementia associated with brain trauma. A social survey, as well as a VA examination, should be performed to assist the veteran in this regard. In view of the foregoing, additional development of the evidence is necessary therefore, this case is REMAND for the following action: 1. A social survey should be performed to ascertain the manner and extent to which the service-connected PTSD impairs the veteran's ability to work. Complete information should be obtained in accordance with the VA Physician's Guide for Disability evaluation Examinations (IB 11-56, March 1985). In particular, the social worker should itemize and describe all attempts by the veteran to work. The study should include a detail description of his daily activities. 2. The veteran should also undergo a special VA examination by a psychiatrist to ascertain the current severity of his service-connected PTSD. The examination should conform to the requirements of the VA Physician's Guide. All indicated tests and studies should be conducted and all findings should be reported in detail. The examiner should note specifically whether any psychopathology other than PTSD is present, including organic mental disorder, and should express an opinion on how they affect his ability to work. The examiner should also express an opinion as to the severity of PTSD. A Global Assessment of Functioning (GAF) score on Axis V should be indicated. The complete claims folder should be made available to the examiner in advance for review. 4. When the foregoing development has be completed, the RO should review the reports obtained pursuant to this REMAND and adjudicate the issues of entitlement to a rating in excess of 70 percent and to a total disability rating based on individual unemployability. If the decision remains adverse to the appellant, a supplemental statement of the case should be prepared and the veteran and his representative should be given a reasonable period of time to reply. Thereafter, the claim should be returned to the Board for further review, if in order. No action is required of the veteran until he receives further notice. The purpose of this REMAND is to obtain additional information. The Board does not intimate any factual or legal conclusions as to the outcome ultimately warranted in this appeal. STEPHEN L. WILKINS 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).