BVA9505171 DOCKET NO. 93-08 125 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES Whether reduction of the disability rating for post-traumatic stress disorder (PTSD) from 70 percent to 50 percent, effective October 1, 1991, was proper. Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from August 1968 to August 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of April and July 1991 by the Department of Veterans Affairs (VA) Albuquerque, New Mexico, Regional Office (RO). The decisions reduced the evaluation assigned to the veteran's post-traumatic stress disorder from 70 percent to 50 percent, effective October 1991. The appeal also arises from decisions of March and October 1992 which, subsequent to the reduction, denied entitlement to an increased rating for post- traumatic stress disorder. The Board notes that, although only one issue was certified for appellate review, this appeal really contains two issues which must be considered separately. The first issue, "whether the reduction of the rating from 70 percent to 50 percent was proper," must be reviewed based primarily on the evidence which was of record at the time of that reduction. The second issue, "entitlement to an increased rating for post traumatic stress disorder," must be considered on the all of the evidence of record, including certain evidence which was added to the record subsequent to the rating actions which reduced the rating to 50 percent. For this reason, the Board will conduct a separate review of each of the issues on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by reducing the rating for his post-traumatic stress disorder from 70 percent to 50 percent. He asserts that the rating should be increased to 100 percent. He states that he could not continue his VA rehabilitation program because he was too seriously ill. He points out that his private psychiatrist, Dr. Ernest Flores, says that he is totally disabled. 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 file. 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 preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. All evidence necessary for equitable resolution of the veteran's appeal has been obtained. 2. The evidence of record demonstrates that there has been sustained improvement in the veteran's post-traumatic stress disorder which can be expected to be maintained under the ordinary conditions of life. 3. The veteran's post-traumatic stress disorder is not productive of more than considerable social and industrial impairment. CONCLUSIONS OF LAW 1. The reduction of a 70 percent disability rating for post- traumatic stress disorder to 50 percent, effective October 1, 1991, was proper, and restoration of the 70 percent rating is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.344, 4.132, Diagnostic Code 9411 (1994). 2. Since the reduction, the criteria for assignment of a disability rating for post-traumatic stress disorder higher than 50 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 3.321, 4.132, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has found that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the claims are not inherently implausible. The Board also finds that all relevant facts have been properly developed. The veteran has been afforded several disability evaluation examinations over the last several years. Statements have been obtained from the veteran's private psychiatrist. The veteran has declined the opportunity to have a personal hearing. The Board does not know of any additional relevant evidence which is available. All evidence necessary for an equitable disposition of the issue on appeal has been obtained. Therefore, no further assistance to the veteran with the development of evidence is required. I. Whether Reduction of the Rating for Post-Traumatic Stress Disorder (PTSD) From 70 Percent to 50 Percent Disabling Was Proper. The Board has considered the full history of the veteran's post- traumatic stress disorder. The veteran's DD 214's show that he served in Vietnam. His military occupational specialties were motor sergeant and wheeled vehicle mechanic. Although those documents do not contain any indication that the veteran was exposed to combat stressors, the veteran has given histories of such exposure. In November 1984, the veteran made a claim for disability compensation for post-traumatic stress disorder. The veteran was afforded a psychiatric evaluation by the VA in May 1985. The diagnoses included chronic post-traumatic stress disorder and dysthymic disorder. Subsequently, in a rating decision of July 1985, the RO granted service connection for post-traumatic stress disorder and assigned a 30 percent disability rating. The veteran perfected an appeal with respect to the 30 percent rating. In a rating of December 1985, the RO assigned temporary total disability ratings for periods of hospitalization, but otherwise confirmed the 30 percent rating. In a decision of February 1986, however, the RO increased the rating to 50 percent, effective from December 1984. Then, in a decision of July 1986, the RO increased the rating to 70 percent disabling effective from March 1, 1986. The increase to 70 percent was based on a report of a psychiatric examination conducted by the VA in June 1986. The report shows that at that time the veteran was living alone and was not employed. He reportedly had not worked since 1984. He stated that he had previously been a student at New Mexico State University, but had dropped out. Following examination, the examiner concluded that the veteran's highest level of adaptive functioning in the past year was "very poor," and that the veteran had marked impairment in both social relations and occupational functioning. The RO also assigned another temporary total disability rating in a decision of September 1986. However, the veteran continued his appeal. In a decision of June 1987, the Board denied entitlement to a rating higher than 70 percent, based on either the schedular rating criteria or unemployability. The veteran was afforded a disability evaluation examination by a VA fee basis examiner in May 1988. The examination report shows that the veteran stated that he was attending college and was majoring in history. Subsequently, in a rating decision of July 1988 the RO confirmed the 70 percent disability ratting. In the decision, the RO noted that there were suggestions that the veteran's mental status had improved sufficiently to allow college work. However, no change was made based on one examination. The RO noted that the veteran would be re-examined in the future to more adequately evaluate his mental condition. Another examination was scheduled for June 1989. For reasons which are not clear, the veteran was not afforded another examination until March 1991. Subsequently, in a rating decision of April 1991, the RO proposed reducing the rating for the veteran's post-traumatic stress disorder. The RO implemented a reduction from 70 percent to 50 percent in a rating action of July 1991, effective from October 1, 1991. The veteran disagreed with that decision and perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Under Diagnostic Code 9411, a 50 percent disability rating is warranted for post-traumatic stress disorder which is productive of considerable social and industrial impairment. A 70 percent rating is warranted if the disorder is productive of severe social and industrial impairment. Because the veteran's 70 percent rating was in effect for a period of more than 5 years, the rating reduction must be reviewed in light of certain regulatory requirements which are set forth in 38 C.F.R. § 3.344 (1993). The United States Court of Veteran's Appeals (Court) reviewed the requirements of the regulation in Brown v. Brown, 5 Vet.App. 413 (1993). The Court noted that 38 C.F.R. § 3.344(a) contains at least four specific requirements which are applicable to a case involving a rating reduction. First, the Board must review the entire record of examinations and the medical-industrial history to ascertain whether the recent disability evaluation examination was full and complete. Second, examinations which are less than full and complete may not be used as the basis of a reduction. Third, ratings on account of diseases subject to temporary or episodic improvement, including psychoneurotic reaction, will not be reduced on the basis of any one examination except where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Fourth, although material improvement in the physical or mental condition is clearly reflected, the rating agency must consider whether that improvement will be maintained under the ordinary conditions of life. Id. at 419. As was noted above, a report of a VA psychiatric examination conducted in May 1988 shows that the veteran's psychiatric disorder had improved to the extent necessary to allow him to return to college. This report presented the RO with the first indication that the veteran's condition had improved. Improvement is also shown by a VA psychiatric examination report dated in March 1991 shows that the veteran stated that he continued to attend school and also attended vocational rehabilitation on a "reduced tolerance schedule". Mental status examination revealed that the veteran was casually dressed, cooperative, and avoided eye contact. His affect was nervous at times clenching his left fist, and his affect was mostly truncated. His speech had a monotonous quality, and was mostly logical with some digressions. His mood was depressed, but without suicidal ideations. His memory was adequate. His judgment and insight were good. The diagnostic impression was post-traumatic stress disorder and possibly dysthymic disorder. The examiner concluded that the veteran's global assessment of functioning was 55, signifying moderate to severe impairment. Of particular interest are documents in the veteran's training and rehabilitation folder which show that he successfully completed his studies and received a job which was scheduled to begin in August 1991. The veteran received his bachelor of science degree in May 1988, and received a master of arts degree in teaching in June 1990. His transcripts show that he received excellent grades during this time period. His grade point average for the fall of 1987 was 3.25. For the spring semester of 1988, it was 3.5. When he received his graduate degree in January 1990, he had a 3.824 grade point average for the graduate courses which he had taken. He continued to take graduate level classes in the spring and fall of 1990 and the spring of 1991. As of that time, he had completed 67 hours of graduate level courses with a grade point average of 3.726. The Board has considered a report dated in May 1991 from the veteran's private psychiatrist, Ernest A. Flores, M.D., which shows that he was of the opinion that the veteran was 100 percent disabled. A report from the same psychiatrist dated in September 1991 contains essentially the same information. The Board notes, however, that these reports essentially ignore the fact that the veteran's psychiatric disorder had improved to the extent that the veteran was able to successfully obtain a bachelor's degree and a master's degree, and was able to obtain gainful employment as a teacher. In fact, the reports state that the veteran's post-traumatic stress disorder was causing him to miss classes and his grades were declining. This statement is at odds with the veteran's actual grades which are summarized above. Because the examiner's opinion apparently was not based on the full knowledge of the veteran's history or was based on an inaccurate understanding of that history, the opinion has little probative value. See Kightly v. Brown, 6 Vet.App. 200, 206 (1994). For this reason, the Board finds that the reports have less probative value than the other evidence discussed above which shows that the veteran's condition had significantly improved. Finally, although not of record at the time of the July 1991 rating action which reduced the rating, it is interesting to note that a report of a VA disability evaluation examination conducted in February 1992 shows continuing improvement in the veteran's disability. The examiner made the following comments: [The veteran's] condition, according to him has not improved. However, his interaction with me in this interview was much better than during the last [compensation and pension examination]. In summary, the evidence upon which the reduction was made was full and complete. The reduction was made not upon one examination report, but upon two examination reports, in addition to documents from the veteran's rehabilitation and training folder. The evidence showed that the veteran's post-traumatic stress disorder had demonstrated sustained improvement. He had returned to school in 1988, and was continuing to attend school in 1991 when the reduction was made. This showed an improvement over the period when the 70 percent rating was originally assigned, at which time the veteran was neither working, nor attending school. Although the RO did not specifically make a finding in this regard, the record contains no evidence to suggest that improvement in the veteran's PTSD is either temporary or episodic. On the contrary, the evidence indicates that, as of September l992, the veteran had been fully employed as a grade school teacher since August l991. Inasmuch as the veteran is, presumably, still gainfully employed and no problems with respect to such employment has been established, such improvement will likely be sustained. Accordingly, the Board finds that the evidence establishes a reasonable certainty that the improvement in his psychiatric condition will be maintained under the ordinary conditions of life. Based on the foregoing evidence, the Board finds that the reduction from 70 percent to 50 percent was appropriate. The post-traumatic stress disorder had improved and was no longer productive of more than considerable social and industrial impairment. Accordingly, the claim for restoration of a 70 percent rating for post-traumatic stress disorder is denied. II. Entitlement to an Increased Rating for Post-Traumatic Stress Disorder, Currently Rated as 50 Percent Disabling. As was noted above, under Diagnostic Code 9411, a 50 percent disability rating is warranted for post-traumatic stress disorder which is productive of considerable social and industrial impairment. A 70 percent rating is warranted if the disorder is productive of severe social and industrial impairment. A 100 percent rating is warranted when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; when there are totally incapacitating symptoms bordering of gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the veteran is demonstrably unable to obtain or retain employment. After considering all of the evidence in light of these criteria, the Board finds that an increased rating is not warranted. The history of the veteran's post-traumatic stress disorder during the period prior to the rating reduction has been discussed above. The evidence which has been added to the record since the rating reduction does not establish that the veteran has more than considerable social and industrial impairment. For example, records in the veteran's vocation rehabilitation folder show that he started a job as an elementary school teacher in August 1991, and that is the reason why his vocational training was discontinued. The Board has considered a report dated in September 1991, virtually identical to one submitted in May 1991, from the veteran's private psychiatrist, Ernest A. Flores, M.D., which shows that he was of the opinion that the veteran was 100 percent disabled. As was noted above, however, that report has essentially no probative value as it was based on an incorrect history given by the veteran. As noted previously, the veteran underwent a VA examination in February l992. Reported complaints were depression, inability to weep, nightmares, low energy level and high anger level. The examiner noted that the veteran had not seen his therapist, nor had he been prescribed medication for four months. The veteran also gave a vague history of "blackouts." On examination, the psychiatrist found that the veteran was casually dressed, avoided eye contact during the interview, and was quite verbal in expressing his anger about not being treated for four months. The examiner also reported that the veteran's speech was goal directed, affect angry and appropriate to the content of his speech. It was reported that the veteran did not express any delusional thoughts, but seemed guarded at times; that his short- term and long-term memory was adequate; and that his judgment and insight were adequate. The diagnosis was post-traumatic stress disorder, rule out seizure disorder. The veteran's impairment of social and occupational functions was described as "serious," and his psychosocial stressors were characterized as "moderate[,] due to chronic back problems." The Board would also point out that the report of the VA February l992 disability evaluation examination shows that the veteran again gave an inaccurate history as he failed to mention that he had been working since the previous August. He stated that he lived alone and did nothing. He also stated that he was unable to have full employment. Nevertheless, in spite of the inaccurate history given by the veteran, the examiner was still able to see that the veteran's condition had improved. The examiner stated that the veteran's interaction was much better than during the last compensation and pension exam. The Board finds that such assessment, along with the examination findings and conclusions, militate against the veteran's claim that his condition has worsened to the extent that an increased evaluation is warranted. Based on the foregoing, the Board finds that the evidence shows no more than considerable impairment, and that the veteran's present disability picture more nearly approximates the criteria required for the currently assigned 50 percent evaluation . Accordingly, the Board finds that the schedular criteria for assignment of the next higher evaluation, 70 percent, are not met. The Board also finds that a rating higher than 50 percent is not warranted on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b)(1) (1994). Under that regulation, an extra-schedular rating may be assigned only in exceptional cases where the schedular evaluations are found to be inadequate, such as where the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards. However, such factors are not shown in this case. The veteran has not recently been hospitalized for treatment of his post- traumatic stress disorder, and he is fully employed. Accordingly, a rating higher than 50 percent for the veteran's post-traumatic stress disorder is not warranted on either a schedular or an extra-schedular basis. ORDER Restoration of a 70 percent rating for post-traumatic stress disorder is denied. An increased rating for post-traumatic disorder is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.