BVA9500840 DOCKET NO. 89-47 488 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for chronic bipolar disorder, rated at 70 percent from March 1, 1987. 2. Entitlement to an increased evaluation for chronic bipolar disorder, rated at 50 percent from August 1, 1987. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active duty from December 1963 to March 1968. This matter came before the Board of Veterans' Appeals (Board) following December 1986, April 1987 and June 1989 rating decisions of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The Board entered a decision in this case in May 1990, denying entitlement to all the benefits sought on appeal. The veteran filed a motion for summary reversal with the United States Court of Veterans Appeals (Court). By decision of February 1992, the Court determined that it had jurisdiction only over that part of the Board decision concerning the veteran's rating reduction in June 1989 from 50 to 30 percent. The Court reversed the Board's affirmance of the RO's rating reduction and remanded the claim with instruction to restore a 50 percent rating as of October 1, 1989. Associate Judge Steinberg, in a concurring opinion, suggested that the Board's decision contained major errors committed in affirming the RO's December 1986 and April 1987 rating reductions. Thereafter, the veteran filed a Motion for Reconsideration in March 1994 of that part of the Board decision that was not reversed by the Court. Reconsideration of that decision was ordered in August 1994 under the authority granted the Chairman of the Board in 38 U.S.C.A. § 7103 (West 1991). The case is now before an expanded Reconsideration Section of the Board. The reconsideration decision, once promulgated, will replace those portions of the May 21, 1990, decision that were not reversed by the Court, and shall constitute the final Board decision with respect to this matter. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the RO was incorrect in reducing the ratings for his service-connected psychiatric condition during the relevant periods in contention. It is averred that the RO erred in reducing the veteran's rating as it failed to consider the provisions and criteria of 38 C.F.R. §§ 3.343 and 3.344 in either of the relevant rating actions. The veteran maintains that the RO failed to consider his ability to secure and perform gainful employment prior to rendering its decisions. It is requested that the veteran be granted the benefit of any reasonable doubt. 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 files. 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 supports the restoration of a 100 percent rating from March 1, 1987, for the veteran's chronic bipolar disorder. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. By rating decision of December 1986, the RO reduced the veteran's evaluation for bipolar disorder from 100 percent, which had been in effect since March 12, 1981, to 70 percent, effective March 1, 1987. 3. By rating action of April 1987, the RO reduced the veteran's evaluation for bipolar disorder from 70 percent to 50 percent, effective August 1, 1987. 4. The RO, by its December 1986 and April 1987 rating actions, failed to take into account regulations pertaining to the stabilization of disability evaluations when it reduced the evaluation for the veteran's bipolar disorder. CONCLUSION OF LAW Restoration of the 100 percent evaluation for the veteran's chronic bipolar disorder effective from March 1, 1987, is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.343, 3.344, 4.1, 4.2, 4.13, 4.132, Diagnostic Code 9206 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). That is, the Board finds that he has presented claims which are not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Initially, the Board observes that the veteran failed to submit a timely substantive appeal with respect to the December 1986 rating decision in issue. However, in light of the failure of that action to consider and apply relevant existing regulations, especially when viewed in conjunction with the similarly deficient April 1987 rating action, the Board shall assume jurisdiction over that part of the instant appeal involving the December 1986 rating decision. See 38 U.S.C.A. § 7104(a) (West 1991); Douglas v. Derwinski, 2 Vet.App. 435, 438-9 (1992). Jurisdiction regarding the April 1987 rating action was obtained through a timely substantive appeal. 38 C.F.R. §§ 20.101, 20.200. The veteran was granted service connection for a bipolar disorder by rating action of December 1982, pursuant to Diagnostic Code 9206. 38 C.F.R. § 4.132. That decision granted a 10 percent evaluation effective from April 1979 based on an earlier claim, with a total schedular evaluation granted effective from March 12, 1981. The total evaluation was assigned based on extensive periods of hospitalization of the veteran during 1981 and 1982. A September 1983 rating action confirmed and continued this rating based on the findings of a review examination. By rating action of December 1986, the veteran's 100 percent rating was reduced to 70 percent, effective March 1, 1987, pursuant to 38 C.F.R. § 3.105(e). The reduction was based on review of the report of a VA examination of August 1986, with the RO finding that the veteran's symptoms did not support a total evaluation. By rating action of April 1987, the veteran's 70 percent evaluation was further reduced to 50 percent, effective August 1, 1987, pursuant to 38 C.F.R. § 3.105(e). The rating decision cited findings from two VA hospitalization reports reflecting periods of hospitalization during October and November 1986. On the basis of the absence of any significant psychiatric symptoms during the two periods of hospitalization, it was determined that the veteran's bipolar disorder did not warrant a 70 percent rating, and that the veteran was employable. The Board has reviewed the rating decisions of December 1986 and April 1987, as well as subsequent correspondence from the RO, statements of the case and the evidence of record at the time of the noted rating decisions to determine whether the RO had cited and considered the applicable regulations with respect to the reduction of ratings and to the evaluation of psychiatric disabilities. In cases involving reduction of a total evaluation, such as here, specific requirements must be met prior to any reduction. Dofflemeyer v. Derwinski, 2 Vet.App. 277, 280 (1992). Where a total disability rating has been found to be warranted based on the severity of the condition, it will not be reduced, in the absence of clear error, without examination showing material improvement. See 38 C.F.R. § 3.343(a). A finding of material improvement must be supported by a comparison of the veteran's previous and current mental condition. Karnas v. Derwinski, 1 Vet.App. 308, 310-11 (1991). Furthermore, 38 C.F.R. § 3.343(a) provides: 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). It is apparent that the RO based its December 1986 decision to reduce the veteran's evaluation from 100 percent to 70 percent solely on review of the report of the VA examination of August 1986. No other evidence, such as the history of the veteran's disability or the circumstances surrounding the veteran's apparent improvement, was cited or discussed. As such, the record provides no basis to conclude that the RO determined that the veteran had demonstrated material improvement in his service- connected disorder. The necessity of reviewing the veteran's psychiatric history and his capacity for adjustment during periods of remission in evaluating his current psychiatric condition is emphasized by the VA's rating schedule. See 38 C.F.R. § 4.130. Further, the August 1986 examination report provides no indication that the veteran's claims folder or any medical records were reviewed in conjunction with the evaluation, despite the fact that the veteran had an extensive history of psychiatric treatment and hospitalizations. An extremely limited history was reported which contained inaccurate information reported by the veteran. As each disability must be viewed in relation to its history and examination reports must be interpreted in light of the disability's entire recorded history, the examination report itself was incomplete and inadequate for rating purposes. See 38 C.F.R. §§ 4.1, 4.2. Given that this inadequate examination report was reviewed in a vacuum, without comparison to historical medical information, the RO clearly failed to satisfy the requirement that an actual change, much less that material improvement, in the veteran's psychiatric condition had occurred prior to modifying his rating evaluation, in violation of 38 C.F.R. §§ 3.343, 3.344 and 4.13. The April 1987 rating decision reducing the veteran's evaluation from 70 to 50 percent was based on findings contained in two VA hospital discharge summaries reflecting treatment of the veteran during periods of hospitalization in October and November 1986. Both of the noted hospitalizations were occasioned by the veteran's alcohol dependence. The veteran's paranoid schizophrenia was noted to be in partial remission in the initial discharge summary, with the latter report noting it only by history. Prior to admission for the initial hospitalization, the veteran had been drinking for one and a half weeks. Although it was reported that the veteran had been hospitalized "two other places" for treatment of psychiatric problems and his "long history of paranoid behavior" was noted, no attempt was made to obtain treatment records of those hospitalizations. On mental status examination he was found to be an unreliable historian, with paranoid thinking and poor compliance with medications. At the time of discharge, the veteran was deemed competent for VA purposes, and able to work. When admitted in November 1986 for treatment of diagnosed alcohol dependence, the veteran incorrectly claimed to be service- connected for post-traumatic stress disorder. Although the veteran's ability to test and adhere to reality was considered temporarily limited or partially impaired, it was attributed to alcohol abuse and impending delirium tremens. Minnesota Multiphasic Personality Inventory (MMPI) testing was essentially within normal limits, with exceptions of the hysteria scale and a "conversion V" on the validity scale. A diagnosis of histrionic personality disorder was offered based on the MMPI findings and because the veteran had been unemployed for six years, among other factors. At the time of his discharge, the veteran was considered mentally competent for VA purposes, and able to work. Although the October and November 1986 hospital discharge summaries indicated that the veteran's service-connected psychiatric condition had stabilized, by no means could this be considered to have been an improvement that could be maintained under the ordinary conditions of life. The veteran had been recorded in numerous treatment records as stating that he drank in order to control psychiatric symptomatology. Both of the noted hospitalizations were necessitated by alcohol dependence of such severity that the veteran was assessed as experiencing psychiatric symptomatology attributable to delirium tremens. Clearly, as the two reports documented treatment during periods of hospitalization for alcohol dependence, any averred "material improvement" could not be said to have been demonstrated under the ordinary conditions of life. At the time of the hospitalizations, the veteran had not worked for a number of years. Where there is material improvement following a regimen which precludes work, a reduction from a total disability rating will not be considered pending re- examination after a period of employment. 38 C.F.R. 3.343(a). Although the veteran was deemed to be able to work at his time of discharge, no further examination was conducted, and subsequent records reflect that the veteran has not been employed since the noted hospitalizations. Therefore, any apparent improvement in the veteran's service-connected psychiatric disorder could not have been attained under the ordinary circumstances of life. Additionally, 38 C.F.R. § 3.344(a) states: When...alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis...or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. When the new diagnosis reflects...personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind. Although the November 1986 Discharge Summary included a newly diagnosed personality disorder and noted the veteran's service- connected disability by history only, the rating board did not exercise caution or consider the ramifications of the new diagnosis, as legally required. The veteran's total evaluation had been in effect for about six years prior to being reduced. The first rating reduction was clearly based on evidence garnered from a single examination that was, in itself, deficient. In both rating reductions, the RO failed to evaluate whether material improvement had been demonstrated and whether the evidence made it reasonably certain that the improvement would be maintained under the ordinary conditions of life. As such, the rating reductions were rendered in violation of 38 C.F.R. §§ 3.343 and 3.344. Dofflemeyer v. Derwinski, 2 Vet.App. 277, 280 (1992); see also Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). In addition to the noted adjudicatory omissions, a review of all the relevant rating decisions and statements of the case reveals no citation whatsoever to 38 C.F.R. §§ 3.343, 3.344, 4.2 or 4.13. The VA is required to follow its own regulations. Browder v. Derwinski, 1 Vet.App. 204, 205 (1991). In light of the totality of the evidence of record, the rating determinations of December 1986 and April 1987 are deemed void ab initio as not in accordance with law, requiring retroactive reinstatement of the veteran's total evaluation from March 1, 1987, the effective date of the initial reduction, and extending through September 30, 1989, the time encompassed by the subsequent reduction to 50 percent. Schafrath v. Derwinski, 1 Vet.App. 589, 595 (1991); Brown v. Brown, 5 Vet.App. 413, 422 (1993). ORDER Restoration of a 100 percent evaluation for the veteran's bipolar disorder is granted, effective March 1, 1987. WARREN W. RICE, JR. JACQUELINE E. MONROE CHARLES E. HOGEBOOM STEPHEN L. WILKINS BARBARA B. COPELAND FRANK J. FLOWERS Members, Board of Veterans' Appeals 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.