Citation Nr: 0002445 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 93-02 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to restoration of a 70 percent evaluation for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 1991 and May 1992 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, that denied a total rating based upon individual unemployability due to service-connected disability and reduced the evaluation for the veteran's PTSD from 70 percent to 50 percent disabling, effective August 1, 1992, respectively. The appeal was remanded by the Board in November 1994. The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability is the subject of the remand portion of this decision. FINDINGS OF FACT 1. The issue of entitlement to restoration of a 70 percent rating for PTSD is plausible and all relevant evidence necessary for an equitable disposition of the veteran's appeal with respect to this issue has been obtained. 2. A February 1991 RO decision granted a 70 percent evaluation for PTSD, effective August 1, 1990. 3. A May 1992 RO decision reduced that evaluation to 50 percent on the basis of one examination that does not demonstrate improvement in the veteran's PTSD. CONCLUSIONS OF LAW 1. The claim of entitlement to restoration of a 70 percent evaluation for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for restoration of a 70 percent evaluation for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.13, Part 4, Diagnostic Code 9411 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for restoration is well grounded within the meaning of 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The report of an August 1990 VA psychiatric examination reflects that the veteran reported frequent anxiety attacks and nightmares. He reported having no friends. The examiner commented that the veteran was socially and occupationally impaired. The diagnosis was PTSD. The veteran was admitted to a VA medical facility for one week in December 1990 and January 1991 for exacerbation of anxiety and depression, described as moderate to mild. He was discharged on medication, with a guarded prognosis, when his depression and anxiety appeared under good control. The diagnosis was dysthymic disorder with anxiety. The veteran was seen in triage at a VA mental health clinic in June 1991 for prolonged depression. He failed to attend a scheduled orientation group/intake interview and was discharged from the clinic's rolls eight days later. The report of an October 1991 VA fee-basis psychiatric examination reflects that the veteran reported considerable anxiety along with insomnia and described he was very depressed. He reported suicidal thoughts. On mental status examination he was alert and oriented. His affect was appropriate. His mood was tense. There was no pressure of speech or flight of ideas. His ability to concentrate was fair and cognitive functioning was intact. No psychotic process was noted and his memory was within normal limits. Insight and judgment were fair. The impression was PTSD, moderate to severe. On the basis of the above a December 1991 RO decision proposed to reduce the 70 percent evaluation assigned for the veteran's PTSD. A personal hearing was subsequently held. A May 1992 RO decision reduced the evaluation for the veteran's service-connected PTSD from 70 percent to 50 percent. The veteran's service-connected PTSD has been rated under the provisions of Diagnostic Code 9411. Prior to November 7, 1996, Diagnostic Code 9411 provided that a 50 percent evaluation would be assigned for PTSD where the ability to establish or maintain effective or favorable relationships with people was considerably impaired or where by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment. A 70 percent evaluation would be assigned where the ability to establish and maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The United States Court of Appeals for Veterans Claims (Court) in Brown v. Brown, 5 Vet. App. 413 (1993), has interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that in any rating reduction case, not only must it be determined that an improvement in an disability has actually occurred, but also that improvement in a disability actually reflects improvement in the veteran's ability to function under the ordinary conditions of life and work. The burden of proof is on VA to establish that a reduction is warranted by a preponderance of the evidence. Kitchens v. Brown, 7 Vet. App. 320 (1995). At the time of the May 1992 reduction from 70 to 50 percent, the recent evidence of record consisted of 1991 VA psychiatric treatment reports, the veteran's testimony and the report of the October 1991 VA fee-basis psychiatric examination. It was incumbent upon VA to demonstrate improvement prior to the rating decision. After the fact justification of a past error cannot make right that which was already wrong. Bentley v. Derwinski, 1 Vet. App. 28, 31 (1990). The 1991 VA psychiatric treatment reports and report of the October 1991 VA fee-basis psychiatric examination reflect that the veteran continued to report similar symptoms as he had expressed at the time of the August 1990 VA examination. Further, the examiner concludes that the veteran's PTSD was moderate to severe. As indicated severe impairment due to PTSD under Diagnostic Code 9411 prior to November 7, 1996, would warrant a 70 percent evaluation. With consideration that the October 1991 psychiatric examination continued to characterize the veteran's PTSD as exhibiting a range of symptoms including severe, as well as the veteran's continued reporting of symptoms similar to those reported prior to the decision granting him a 70 percent evaluation, the Board concludes that there is not a preponderance of the evidence that indicates that there was actual improvement in the veteran's service-connected PTSD prior to the May 1992 RO reduction. Therefore, the 70 percent evaluation should not have been reduced and restoration is warranted. ORDER Restoration of the 70 percent evaluation for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND The December 1991 RO decision denying total disability compensation based upon individual unemployability due to service-connected disability refers to the veteran's school attendance under vocational rehabilitation. The Board's November 1994 remand requested that the veteran's complete vocational rehabilitation and counseling folders be associated with the claims folder. The record does not indicate that this has been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the appeal is REMANDED to the RO for the following: 1. The RO should obtain the veteran's complete vocational rehabilitation and counseling folders, and associate these records with the claims folder. 2. The RO should then readjudicate the issue remaining on appeal with consideration of restoration of a 70 percent rating for PTSD granted in the decision above. If any decision remains adverse to the veteran, for which a notice of disagreement has been filed, he and his representative should be furnished a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. No action is required of the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). U. R. POWELL Member, Board of Veterans' Appeals