Citation Nr: 0005982 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 98-17 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to restoration of a 100 percent disability rating for service connected nervous condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from August 1963 to July 1966. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO reduced the disability rating for schizophrenia from 100 percent to 50 percent. A subsequent rating action by the RO in June 1999 increased the rating for this psychiatric disability, now described as schizophrenia, major affective disorder, to 70 percent, effective June 1, 1998, and forwarded the case to the Board for appellate review. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). FINDINGS OF FACT 1. In February 1998, the RO proposed a reduction in the rating for the service connected schizophrenia from 100 percent to 50 percent. 2. The RO offered the veteran the opportunity for a reexamination prior to reducing the schizophrenia disability rating, but the veteran failed to report for the examination. 3. A May 1998 rating decision reduced the rating for the service connected schizophrenia from 100 percent to 50 percent, effective from June 1, 1998; the rating was subsequently raised to 70 percent, effective from June 1, 1998. 4. The veteran's nervous condition, previously diagnosed as schizophrenia, is manifested by periods of anxiety and stress, including panic attacks occurring about once or twice a month, varying degrees of depression, with a depressed and anxious affect, and periods of significant occupational difficulties during increased stress and anxiety. CONCLUSION OF LAW Restoration of a 100 percent rating for the service connected nervous condition is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104, 7261 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.102, 3.344, 3.655, 4.130, Diagnostic Code 9204, 9440 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board first notes that this appeal is more appropriately described as a request for restoration of a prior rating instead of a claim for an increased rating. As the following discussion will describe, the psychiatric condition, then described as schizophrenia, was previously rated as 100 percent disabling. The veteran appealed the reduction of his disability rating, and continues to appeal after the subsequent partial rating restoration to 70 percent. The veteran appeals the RO's May 1998 reduction of his disability rating for schizophrenia from a previous disability rating of 100 percent. To determine the merits of the veteran's appeal, it is essential to trace the medical and rating history that led to the RO's decision. In an October 1975 rating decision, the RO granted service connection for schizophrenia, with a 70 percent rating effective from June 28, 1974, the date of receipt of the veteran's claim. Although the veteran's service medical records do not provide evidence of a nervous condition in service, a June 1974 statement from Lamont Henry, M.D., indicates that he started treating the veteran for a nervous condition in November 1966, which was less than one year following service discharge. This statement from Dr. Henry indicates that the veteran's nervous condition was related to his year of combat service in Vietnam, which he had just recently completed. A September 1975 VA examination showed that the veteran was very anxious and nervous, and complained that he is constantly nervous, has sleep problems, and is unable to keep a job because he is either fired or quits the job due to his inability to concentrate, his increased nervousness and dissatisfaction with the job. The examiner noted that the veteran was hospitalized in 1974 for an overdose of medication. The examiner diagnosed schizophrenia. In a May 1980 rating decision, the RO decreased the veteran's schizophrenia rating from 70 percent to 50 percent. The evidence showed that the veteran had not received psychiatric treatment in recent years prior to the rating decision, and appeared to be showing more initiative and better organized with his life than he was previously. The veteran appealed this rating decision, and an April 1981 Board decision affirmed the 50 percent schizophrenia rating. However, in an August 1982 rating decision, the RO granted a temporary 100 percent rating from March 16, 1982 to April 30, 1982, under 38 C.F.R. § 4.29 for VA hospitalization for major depression, medication abuse and passive dependent personality. His schizophrenia rating was then returned to 50 percent effective May 1, 1982. The veteran applied for a total disability rating based on individual unemployability (TDIU) in January 1995, as well as an increased rating for schizophrenia. After initially denying the veteran's claims, the RO granted a 100 percent schedular disability rating for schizophrenia in a June 1996 rating decision, effective January 26, 1995, the date of receipt of the veteran's TDIU claim. The 100 percent schedular rating was assigned under 38 C.F.R. § 4.16(c), then in effect, which provided for such a rating rather than a rating under 38 C.F.R. § 4.16 for unemployability. The RO based its decision on a determination that the veteran's schizophrenia demonstrated a severe impairment of social and industrial adaptability, warranting a 70 percent evaluation, and that the evidence showed that the veteran was unable to follow a substantially gainful occupation. The RO informed the veteran that although the decision represented a full grant of the benefits sought on appeal, the disability may be subject to improvement and the assigned evaluation is subject to future review examination. The veteran was informed of this decision by a July 3, 1996 letter. The record shows that the RO attempted to schedule the veteran for a VA examination in August 1997. However, the notice of examination was returned to VA undelivered. In January 1998, VA then attempted to obtain a current address for the veteran by requesting the information from the bank where the veteran's disability payments were being directly deposited. The bank responded with the same Atlanta address that the RO had on file. Therefore, after due diligence to obtain a correct address for the veteran, the RO proposed to reduce the veteran's schizophrenia rating from 100 percent to 50 percent, which was a protected rating, for the veteran's failure to report for a VA reexamination. In proposing this reduction, the RO complied with the procedural requirements outlined at 38 C.F.R. § 3.105(e) (1999), and sent this letter to the veteran's last known address of record. As the rating reduction would ultimately result in the reduction of compensation payments being made to the veteran, the RO appropriately prepared a proposed rating reduction setting forth material facts and reasons. The RO notified the veteran of this proposed action in February 1998, and informed him that he should inform VA within 60 days as to whether he would report for a reexamination. The veteran replied, through his representative, in March 1998 that he never received the examination notification and that he was willing to report for an examination. The RO then rescheduled the veteran's examination for May 1998, but the veteran failed to report for that examination. The Board notes that the veteran's correspondence to VA in April 1998 listed his address as being in Atlanta. Furthermore, VA records of prescriptions being filled for the veteran between March and June of 1998 show his address as the same Atlanta address that was listed on correspondence from the veteran at the time. After the veteran failed to report for the examination, the RO sent a May 18, 1998 letter to the veteran, to the same Atlanta address, stating that his schizophrenia disability rating was now being reduced for repeated failure to report for an examination despite his assurances in March 1998 that he would report for an examination. The RO then issued a rating decision in May 1998 reducing the schizophrenia rating from 100 percent to 50 percent, effective June 1, 1998, and informed the veteran of this action. The veteran replied to the RO three days after the RO's May 18 letter, stating that he was never notified of the reexaminations, and requesting that his disability rating be restored to 100 percent. The veteran also submitted a consent form for release of information to VA, received by VA in June 1998, in which he listed his address as the same Atlanta address that was listed in VA records at the time. The RO again rescheduled the veteran for a VA examination in July 1998, and informed the veteran by a June 22, 1998 letter mailed to the same Atlanta address listed on the veteran's most recent correspondence. Once again, the veteran failed to report for his July 1998 examination. The veteran replied to VA in October 1998 that he no longer lives in Atlanta, giving a Savannah address, and stated that he appeals the reduction in rating. He also stated that he wished to have a personal hearing on the issue of his rating reduction. During his November 1998 hearing, the veteran testified that he had lived in New York with his fiancée -- now his wife -- for a year and one half leading up to July 1998, when he moved to Savannah. He stated that the Atlanta address that he was using was his father's address, and that his failure to report for examinations was due to his father's failing health and inability to notify the veteran of scheduled examinations. The veteran stated that his father was diagnosed with cancer in July 1998 and died in September 1998. Subsequent to this RO hearing, the veteran was examined by VA in January 1999. Based on this examination, the RO increased evaluation of the veteran's schizophrenia -- now described as major affective disorder, recurrent, currently in partial remission -- to 70 percent effective June 1, 1998, the date of the previous effective date of the reduction to 50 percent. The Board finds that the RO complied with all procedural considerations before reducing the veteran's psychiatric disability rating. In accordance with 38 C.F.R. § 3.105(e) and § 3.655(c), the RO notified the veteran in February 1998 at his latest address of record of his failure to report for examinations, allowing him 60 days to inform the RO of his willingness to report for another examination. This action was taken by the RO only after diligently trying to obtain the veteran's current mailing address through his bank, which confirmed the address on record. As previously stated, the veteran promptly responded in March 1998 that he never received notification of the examination, and requested another examination date. Similarly, he failed to report for the scheduled examination in May 1998, and again later stated that he never received notification; yet he promptly responded to VA after he was informed that his rating was reduced for failure to report for the examination. All this time, VA used the veteran's Atlanta address as the address of record. The Board notes that the veteran testified during his RO hearing that he was living in New York during this time period; yet his correspondence in April 1998 and VA record of prescriptions being filled from March to June of 1998 show his address to be in Atlanta. The Board notes that the record shows that the veteran maintained his father's residence in Atlanta as his address of record with VA. The evidence is clear that the veteran deliberately maintained his address of record as the Atlanta address, even though he actually lived in New York. The Board will not abrogate the veteran's responsibility to respond to VA correspondence by blaming the veteran's father for alleged failure to relay the information to his son. It was not until July 1998 that the veteran reportedly changed his address to Savannah. By this time, the RO had already reduced the veteran's disability rating for failure to report for examinations. Under 38 C.F.R. § 3.655, a veteran who fails to report for a VA examination may be subject to the reduction or discontinuance of VA disability benefits. However, § 3.655 allows for a reduction or discontinuance of benefits only when the veteran's failure to report for examination was without good cause. The Board finds that the veteran has not presented good cause for his failure to report for examinations. He maintained his father's address as his address of record up through the rating reduction action in May 1998. He promptly responded to correspondence about failure to appear for examinations and the RO's intention to reduce his disability rating, and maintained that his address was still in Atlanta, but did not report for the examinations even though his address of record never changed during this period. The fact that the veteran reportedly lived in New York while purposely maintaining an Atlanta address of record is evidence to the Board that good cause is not shown for his failure to appear for the examinations. The RO complied with §§ 3.105 and 3.665, and the evidence shows that the onus was on the veteran, and not his father, to either change his address of record to New York during this period or be subject to the consequences, of which he was duly informed, for failure to respond timely to VA correspondence. As stated, the Board finds that the procedural requirements of 38 C.F.R. §§ 3.105 and 3.655 were met before the RO reduced the veteran's psychiatric disability rating. The Board now turns to the question of whether the evidence since the veteran reported for a VA examination in January 1999 supports a 100 percent rating. The Board finds that the 100 percent rating criteria are not satisfied. Service connected disabilities are rated in accordance with the VA's Schedule for Rating Disabilities (Schedule). The ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (1999). The Schedule directs that in evaluating the severity of mental disorders under the diagnostic criteria consideration should be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Ratings shall be based on all the evidence of record as it bears on social and industrial impairment rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Although social impairment is crucial in determining the level of overall disability, an evaluation may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (1999). The veteran's service connected schizophrenia, major affective disorder, competent, is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9204 - schizophrenia, undifferentiated type -- which is rated under the general rating formula for mental disorders. Under this general rating formula, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for name of close relatives, own occupation, or own name. The evidence from the January 1999 VA examination shows that the veteran has periods of very severe depression, during which he has some hopelessness and vague suicidal thoughts, although he states that he has never come close to acting on his suicidal ideation. He also complains of chronic insomnia, and appetite problems when his depression is at its worst. He has anxiety with panic attacks occurring about once or twice a month and last for several minutes. He also has hallucinations that vary in frequency, but on average once a month. His mood tends to be sad or dysphoric. The veteran also reports that he functions fairly well during periods of low or minimal stress. He states that he is married, is close to his wife, has friends, and also has outside interests such as Civil War history. He relates that periods of even mild stress increase his anxiety and depression symptoms. He states that even thinking about working again raises his anxiety and stress. Upon examination, the veteran was alert, cooperative, pleasant, with clear sensorium. He was well oriented, with memory intact and speech normal. His affect was mildly to moderately depressed and anxious. The examiner noted that the veteran became anxious when talking about Vietnam or work stress. The examiner did not find the veteran to be suicidal, and there was no evidence of psychosis or thought disorder. Insight and judgment were intact. The examiner diagnosed the veteran with major affective disorder, recurrent, currently in partial remission. According to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (pp. 46-47)(4th ed., revised, 1994) (or DSM-IV), his Global Assessment of Functioning (GAF) code is 50, which the examiner described as with little or no stress the veteran functions quite well and normally, but his stress tolerance is quite impaired, interfering significantly with occupational functioning and even with some social functioning. This evidence clearly shows that the veteran's current nervous condition does not satisfy the 100 criteria for mental disorders. There is no evidence of symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, memory loss for names of close relatives or his own name, and intermittent inability to perform basic minimal hygiene. The evidence shows that the veteran has not displayed these symptoms. Therefore, the Board must conclude that the factual evidence does not support a restoration of the 100 percent rating. The Board also notes that the veteran requested a Board Video Hearing in December 1999 to present evidence on his behalf, was provided a hearing date in January 2000, but failed to report for his hearing. ORDER Entitlement to a restoration of 100 percent disability rating for a service connected nervous condition is denied. MARY GALLAGHER Member, Board of Veterans' Appeals