Citation Nr: 0004509 Decision Date: 02/22/00 Archive Date: 09/08/00 Citation Nr: 0004509 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 94-11 869 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the 50 percent evaluation for posttraumatic stress disorder (PTSD) was properly reduced to 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzanne Wright, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from A February 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which reduced the evaluation for the veteran's service- connected PTSD from 50 to 30 percent, effective from May 1, 1990. Several subsequent RO decisions granted temporary total ratings for PTSD under the provisions of 38 C.F.R. § 4.29 (1999) and, in a decision entered in February 1996, the RO increased the rating for PTSD to 70 percent, effective from March 1, 1995, and granted a total (100 percent) compensation rating based on individual unemployability. In a decision entered on May 17, 1999, the Board found that the RO's 1990 decision reducing the rating of the veteran's PTSD from 50 to 30 percent was void ab initio, thereby restoring the 50 percent rating for the period May 1, 1990 through February 1995. ORDER TO VACATE As noted above, in May 1999, the Board issued a decision that the RO's 1990 decision reducing the rating of the veteran's PTSD from 50 to 30 percent was void ab initio, thereby restoring the 50 percent rating for the period May 1, 1990, through February 1995. After that decision was issued, in June 1999, the Board discovered some additional correspondence from the veteran that the Board had constructive possession of at the time of the May 17, 1999 decision, although that correspondence was not associated with the veteran's claims file at that time, and was consequently not considered when the Board's May 17, 1999 decision was issued. That correspondence consisted of a statement from the veteran, received by the RO in February 1999, withdrawing his appeal. Thus, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal was requested, and the criteria for withdrawal of a Substantive Appeal by the appellant had been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 1991); 38 C.F.R. §§ 20.202, 20.204(b), (c) (1999). In view of the foregoing, the Board's May 17, 1999 decision is hereby vacated. See 38 C.F.R. 20.904 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals Citation Nr: 9913369 Decision Date: 05/17/99 Archive Date: 05/26/99 DOCKET NO. 94-11 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether the 50 percent evaluation for post-traumatic stress disorder (PTSD) was properly reduced to 30 percent. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from January 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which reduced the evaluation for PTSD from 30 to 50 percent. During the course of this appeal, the veteran has changed his residence on numerous occasions, most recently to Broseley, Missouri. The claims folder has been transferred to the jurisdiction of the RO in St. Louis, Missouri. FINDINGS OF FACT The provisions of 38 C.F.R. § 3.344 were not considered and applied at the time of the 1990 RO rating action reducing the disability evaluation for the veteran's service-connected PTSD from 50 percent to 30 percent, effective May 1, 1990; that decision is, therefore, void ab initio as not in accordance with the law. CONCLUSION OF LAW The reduction of the evaluation for PTSD, from 50 to 30 percent, was void ab initio, and restoration of the 50 percent evaluation is warranted for the period from May 1, 1990 through February 1995. 38 C.F.R. § 3.344 (1998): Kitchens v. Brown, 7 Vet. App. 320 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. Service connection for PTSD was granted by the RO in January 1985. A 50 percent evaluation was assigned, effective August 1984. This decision was based, in part, on an October 1984 VA psychiatric examination report that noted that the veteran had recurrent intrusive nightmares and flashbacks, with markedly diminished interest in any activities, and that he was "very detached from people and has tremendous trouble forming relationships or expressing himself." The veteran had auditory hallucinations, persecutory and paranoid feelings, and delusions of reference. He also had some suicidal ideation, with a number of attempts in the past, and strong homicidal feelings. A rating decision dated in May 1985 assigned a temporary total (100 percent) evaluation for PTSD, under 38 C.F.R. § 4.29, from March to the end of April 1985, due to hospitalization in excess of 21 days for service-connected PTSD. The 50 percent evaluation was resumed from the beginning of May 1985. The veteran was given a VA psychiatric examination in January 1990. The RO, in February 1990, determined that the VA examination report "indicates that the veteran's condition has improved," and proposed reducing the evaluation for PTSD from 50 to 30 percent, effective May 1990. The RO notified the veteran of the proposed reduction in February 1990, and of his rights to a predetermination hearing and to submit additional evidence. VA psychiatric treatment records from January to April 1990 were received in April 1990. In May 1990, the RO notified the veteran that the evaluation for PTSD had been reduced from 50 to 30 percent, effective May 1990. The RO did not specify whether the treatment records from January to April 1990 had been considered in its decision. 38 C.F.R. § 3.344(c) provides that, if a rating has been in effect for 5 years or more, the provisions of 38 C.F.R. § 3.344(a) must be complied with in any rating reduction. The latter provision requires that there be material improvement in the disability before there is any rating reduction. See Peyton v. Derwinski, 1 Vet. App. 282, 286-87 (1992). The 50 percent evaluation for the veteran's PTSD had been in effect since May 1, 1985, and reduction of the rating from 50 percent to 30 percent was effectuated ultimately on May 1, 1990. The duration of the rating is measured from the effective date assigned until the effective date of the actual reduction. As such, the pertinent matter at issue is whether material improvement in the veteran's disability was demonstrated in order to warrant a reduction in such compensation benefits. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). VA regulations provide that, where reduction in evaluation of a service-connected disability is considered warranted, and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared, setting forth all material facts and reasons. 38 C.F.R. § 3.105(e) (1998). The Board notes that this was done in the instant case. In February 1990, the RO proposed the reduction in the veteran's 50 percent disability evaluation for PTSD, and he was properly notified of the proposed action. Furthermore, the regulations provide that the veteran is to be notified of the contemplated action (reduction or discontinuance), given detailed reasons therefor, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The veteran is also to be informed that he may request a predetermination hearing, provided that the request is received by the VA within 30 days from the date of the notice. If additional evidence is not received within the 60 day period and no hearing is requested, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e),(h) (1998). In the instant case, the Board finds that the RO furnished the veteran appropriate notice of the proposed rating reduction for his PTSD in February 1990. Moreover, the veteran subsequently submitted a statement indicating his disagreement with the proposed rating reduction, and his statement was considered by the RO. The veteran did not request a predetermination hearing. The proposed reduction was effectuated in a May 1990 rating decision, effective May 1, 1990. Therefore, the Board finds that the RO's reduction of the evaluation of the veteran's PTSD was procedurally in accordance with the provisions of 38 C.F.R. § 3.105. Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examinations and 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 a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., 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. 38 C.F.R. § 3.344(a); Kitchens, supra; Brown, supra. The provisions above apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examinations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The Board has reviewed the record and finds that the reduction in rating from 50 percent to 30 percent was legally improper. There is nothing in the evidence of record to show that the RO considered the provisions of 38 C.F.R. § 3.344(a),(c) when it reduced the veteran's evaluation in May 1990. Leaving aside the question of whether the clinical evidence of record at the time of the RO's 1990 rating decision clearly failed to indicate material improvement in the veteran's disability, including improvement under the ordinary conditions of life such as working or actively seeking work, the Board notes that the RO failed to address the question of material improvement. Failure to consider and apply the provisions of 38 C.F.R. § 3.344, if applicable, renders a rating decision void ab initio. Dofflemyer v. Derwinski, 2 Vet. App. 277, 282 (1992); see also Kitchens and Brown, supra. The Board parenthetically notes that VA treatment records from January to April 1990 do not clearly warrant the conclusion that sustained improvement in PTSD had been demonstrated at the time of the May 1990 rating decision that reduced the evaluation for PTSD. A February 1990 entry noted "exacerbation of PTSD and increased anxiety." A March 1990 entry noted "it does not appear that [the veteran] can effectively return to any employment at this time due to his problems dealing with people, PTSD symptoms, emotional irritability and potential for violence." Another entry later that same month stated "the clinical record and current observation supports the evidence for severe PTSD." While obviously not of record at the time of the rating reduction decision, it is also interesting to note that rating decisions dated in January 1991, September 1991, and September 1992 granted additional temporary total (100 percent) evaluations under 38 C.F.R. § 4.29, effective from August to December 1990, from June to September 1991, and from February to April 1992, for hospitalization due to PTSD, and a rating decision dated in January 1996 increased the evaluation for PTSD from 30 to 70 percent, effective March 1995. In any event, as the RO failed to apply 38 C.F.R. § 3.344 in its reduction of the veteran's disability evaluation for PTSD from 50 percent to 30 percent, the Board finds that the May 1990 rating decision is void ab initio as not in accordance with the law, and thus the Board has no legal option but to restore the 50 percent schedular rating. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.344(a), (c). ORDER The reduction of rating for the veteran's PTSD from 50 percent to 30 percent in May 1990 was legally improper. REMAND In a statement received by the RO in June 1990, the veteran asserted that, aside from the claim that the rating reduction to 30 percent for his PTSD was improper, his PTSD was more disabling than 50 percent. As noted in the above decision, the veteran was granted several temporary total ratings for his PTSD in recent years, including from January 6, 1995 through February 1995, and, in a rating decision in January 1996, the RO increased the rating to 70 percent, effective from March 1, 1995. The same RO decision granted a total compensation rating based on individual unemployability, also effective from March 1, 1995. Under these circumstances and in light of the Board's decision, the issue that remains is entitlement to a rating in excess of 50 percent for PTSD, from May 1, 1990 through February 1995, and to a rating in excess of 70 percent thereafter. The RO must adjudicate the remaining issue. R. F. WILLIAMS Member, Board of Veterans' Appeals