Citation Nr: 0004285 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-20 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Whether a May 20, 1992 decision to reduce the evaluation of the veteran's service-connected post-traumatic stress disorder (PTSD) constituted clear and unmistakable error (CUE). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had active service from March 1963 to August 1967, reserve duty from April 1970 to April 1971, and active duty from April 1971 to February 1974. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which denied the veteran's claim that there was CUE in the May 1992 rating decision that reduced the 100 percent evaluation then in effect for PTSD to a 50 percent rating, effective August 1, 1992. FINDINGS OF FACT 1. In a May 1992 rating decision, the RO reduced the 100 percent rating in effect for PTSD to a 50 percent rating, effective August 1, 1992. 2. The reduction was based on one examination that failed to demonstrate material improvement in the veteran's disability under the ordinary conditions of life. CONCLUSION OF LAW There was CUE in the May 1992 rating decision, and the 100 percent evaluation for PTSD is restored, effective August 1, 1992. 38 C.F.R. §§ 3.105(a), 3.343, 4.130, 4.132 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Historically, a May 1989 rating decision granted service connection for PTSD, and assigned a 100 percent evaluation pursuant to the provisions of Diagnostic Code 9411 of the VA's Schedule for Rating Disabilities, 38 C. F. R. Part 4. This award was based on private treatment records reflecting that the veteran had been on total disability due to PTSD since November 1987, and indicating that he should not return to work. On VA examination in June 1991, the veteran reported that his PTSD symptomatology was "either worsening or staying the same." He related that his anxiety and panic attacks were less frequent, but remained intense. The veteran explained that while he previously experienced these attacks six times a day, he currently experienced one or two attacks a day. He stated that his depression and survivor guilt had increased in severity. He experienced recurrent nightmares, and his sleep was "extremely disrupted." His intrusive thoughts were "worse than ever," and he continued to experience flashbacks. The veteran reported an inability to concentrate, and a lack of energy. On mental status examination, the veteran spoke slowly and deliberately, and had a "somewhat hostile exterior." He very quickly dissolved into tears when describing his current situation. His eye contact was appropriate, his manner was intense, and there was no pressured speech. His attire was neat and clean. The veteran described his mood as anxious and depressed, and his affect was consistent with this description. His thought process was entirely logical and coherent without any evidence of psychosis. His thought content was remarkable for stress and agitation associated with Vietnam episodes. The veteran described a sense of foreshortened future, and felt depressed about "ever getting over this problem." He described daily suicidal ideation without intent or plan, with his family as the deterrent. He denied any homicidal idea, intent or plan. Cognitively, the veteran was entirely intact. He was alert and oriented to person, place and time. The report notes that he seemed to be of normal or slightly superior intelligence. According to the record, the veteran described an inconsistent neurovegetative picture for depression. He reported a normal appetite, increased libido, decreased concentration, was tired in the morning, and was fatigued throughout the day. The diagnostic impression was AXIS I: PTSD. AXIS II: None. AXIS III: None. AXIS IV: 3 moderate psychosocial stressors. AXIS V: Current global assessment of functioning (GAF) 60-70. The examiner opined that the veteran "still suffer[ed] from PTSD to the same, if not to a greater degree than what was described in 1989." However, he reported that the veteran was "going back to work not withstanding." The physician concluded that the veteran was under a lot of stress and should continue in his therapy and with his medications. Based on the June 1991 VA psychiatric examination report, the RO proposed a reduction of the veteran's 100 percent evaluation for PTSD in November 1991. Consequently, a May 1992 rating decision reduced the evaluation from 100 percent to 50 percent, effective August 1, 1992. This rating was assigned pursuant to Diagnostic Code 9411. The RO concluded that there was "no credible medical evidence supporting continuation of total evaluation for PTSD in view of the veteran's self-employment." The veteran was notified of the above determination and of his right to appeal by a letter dated in May 1992. Although he filed a notice of disagreement, and the RO furnished a statement of the case in August 1992, the veteran did not submit a substantive appeal. In a July 1993 VA examination report, the physician who performed the June 1991 examination commented that he was "surprised" to discover that the RO inaccurately interpreted his June 1991 assessment. He noted that because the veteran was working, the RO apparently determined that he was less than fully disabled. The physician reported that the veteran was working in an essentially sheltered environment where he reported to his cousin, who is the president of the company. He concluded that the veteran would be unable to work in any other setting. The RO continued the 50 percent evaluation of the veteran's service-connected PTSD in November 1993, and November 1995. An October 1996 VA examination report notes a diagnosis of PTSD, major depression, and panic disorder. The veteran's GAF score was 40. Later that month, the RO granted a 70 percent evaluation for the veteran's service-connected PTSD, and assigned a September 13, 1995, effective date. Following a December 1996 personal hearing, the RO granted a 100 percent evaluation for the veteran's PTSD in February 1997, effective September 13, 1995. In an April 1998 claim, the veteran alleged that the May 1992 rating decision reducing the evaluation assigned for his service-connected PTSD from 100 percent to 50 percent constituted CUE. An October 1998 RO decision determined that no revision of the May 1992 decision was warranted. The veteran filed a notice of disagreement with this decision in November 1998, and submitted a substantive appeal the following month, perfecting his appeal. During a December 1998 hearing, the veteran reiterated his contention that the May 1992 rating decision contained CUE. The following month, the RO again found that a revision of the May 1992 decision was not warranted. During a January 2000 Central Office hearing, the veteran asserted that there was CUE in the May 1992 rating action. He contended that the RO failed to consider the provisions of 38 C.F.R. § 3.343, and maintained that it was error to reduce the award for his service-connected disability without establishing material improvement. Analysis The Board initially notes that the unappealed May 1992 rating decision became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 19.193 (1991) (now 38 C.F.R. § 20.1103 (1999). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). 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 had 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). A 100 percent evaluation may be assigned for PTSD where the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, where there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior, and where the veteran is demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9411 (as in effect in 1992). In order to uphold the reduction of the veteran's 100 percent evaluation, the evidence must establish that there was material improvement in his condition under the ordinary conditions of life, that is, while working or actively seeking work. 38 C.F.R. § 3.343(a). A comparison between the current examinations and the previous examinations is undertaken in order to determine if material improvement is shown. Tucker v. Derwinski, 2 Vet. App. 201, 204 (1992) (per curiam). A conclusion that material improvement was demonstrated when the examinations are compared can not be made in this case. During the June 1991 VA examination which provided the basis for the reduction, the veteran reported that the symptomatology associated with his service-connected PTSD was "either worsening or staying the same." In addition, the VA examiner specifically found that the veteran's PTSD was "the same, if not to a greater degree" than during the previous VA examination in April 1989. The Board notes that the Court has held that the failure to consider and apply the provisions of 38 C.F.R. § 3.343(a), if applicable, renders a rating decision void ab initio, as not in accordance with law. Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992). In this case, as shown by the medical evidence reported above, the Board finds that the 100 percent schedular evaluation was reduced when the evidence did not show material improvement. There is no indication in the May 1992 rating action that the RO considered 38 C.F.R. § 3.343(a). The RO failed to demonstrate that material improvement in the veteran's disability had been shown. This failure can not be cured by subsequent examination or action by the VA. Rather, the Board must look only to the evidence of record at the time of the reduction, and determine whether that action was appropriate. The Board finds that the failure to consider, as required, the provisions of 38 C.F.R. § 3.343(a) constitutes CUE. Accordingly, restoration of the 100 percent schedular rating for PTSD is warranted, effective August 1, 1992. ORDER There was CUE in the May 20, 1992 rating decision which reduced the 100 percent evaluation in effect for PTSD, and the 100 percent evaluation is restored, effective August 1, 1992. Richard B. Frank Member, Board of Veterans' Appeals