BVA9506116 DOCKET NO. 93-11 521 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to restoration of a total schedular evaluation for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Department of Veterans Affairs, Florida WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held in May 1993 before the Board member rendering the final determination in this case. The Board notes that at his May 1993 travel board hearing, the veteran raised the issues of service-connection for heart disease and liver disease as a result of the use of psychotropic medications for his service-connected post-traumatic stress disorder. At that time the veteran also raised the issues of service connection for peripheral neuropathy, right eye optic atrophy and liver disease, all as residuals of Agent Orange exposure. These issues have not been developed for appellate consideration and are referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in reducing the total schedular evaluation for his service-connected post-traumatic stress disorder (PTSD) to 70 percent. He maintains that he is unemployable due to PTSD. The veteran further contends that the December 1991 VA examination upon which the reduction is based was inadequate for rating purposes. It is maintained that the reduction was in violation of the provisions of 38 C.F.R. § 3.344 concerning the stabilization of disability ratings. 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 restoration of a total schedular evaluation for the veteran's service-connected post-traumatic stress disorder is warranted. FINDING OF FACT Evidence satisfactorily establishing material improvement in the veteran's PTSD was not of record at the time of the rating decision reducing the 100 percent evaluation for the disability. CONCLUSION OF LAW The criteria for reduction of a total schedular evaluation for PTSD were not met at the time of the rating decision reducing the total schedular evaluation for the disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.343, 4.132, Diagnostic Code 9411 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and these ratings are based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected PTSD; however, the Board is of the opinion that this case presents no evidentiary considerations which would warrant a detailed exposition of the remote clinical histories and findings pertaining to the veteran's PTSD. In an April 1982 rating decision the RO granted service connection for PTSD, evaluated as 50 percent disabling. Following review of June 1987 VA psychiatric progress notes, in which the examiner opined that the veteran was virtually completely dysfunctional, the RO increased the veteran's disability evaluation to 100 percent in a June 1987 rating decision. Subsequent to an August 1988 VA examination for compensation purposes, the RO confirmed and continued the veteran's 100 percent rating in a September 1988 rating decision. Following a December 1991 VA compensation examination, the RO reduced the veteran's disability evaluation to 70 percent. The RO further considered an October 1990 VA progress note that indicates that the veteran was considering VA's fee-contract program. The August 1988 VA examination report shows that the veteran complained of night sweats, nightmares and flashbacks. The veteran indicated that he was a loner and did not like being with people. The examiner noted that the veteran was receiving VA outpatient treatment once a week, but was not on medication due to previous liver disease. The examiner observed that the veteran's spirits were down, that there was no indication of paranoid thinking at that time and that his memory, orientation, insight and judgment were adequate. The examiner diagnosed severely disabling PTSD. VA outpatient treatment records dated from March 1985 to October 1990 show treatment for the veteran's psychiatric disability as well as other disabilities. A March 1989 treatment record shows that the veteran was belligerent at that time and a September 1990 mental health clinic progress note shows that the veteran was easily diverted about his problems with the VA administration, was physically restless and very confused about his aims. As previously mentioned, the October 1990 progress note shows that the veteran was considering the fee-contract program. It also shows that the veteran's difficulty in dealing with his own problems was aggravated by projections and negative identification. At his December 1991 VA examination for compensation purposes, the veteran complained of continued nightmares, night sweats and flashbacks. He was a self-described loner and stated he did not like closed rooms. According to the examination report, the veteran further indicated that he had sought no treatment or medication for his psychiatric disability in the three years prior to the examination. The veteran denies making this statement. He had not worked since 1982. The examiner noted that the veteran initially related in a hostile, angry and disgruntled fashion and refused to be interviewed alone. As the interview progressed his hostility diminished; however, talking about his PTSD did appear to make him more anxious and depressed. The examiner noted no overt evidence of a thought disorder and found the veteran oriented in all three spheres with no detectable gross cognitive deficits. The examiner found the veteran's judgment and insight well preserved and diagnosed chronic PTSD. VA treatment records dated from May 1991 to April 1993 show that the veteran continued to seek treatment of his physical and psychiatric disabilities. A September 1992 progress note shows that the veteran had an odor of alcohol and continued to make threats and attempted to control by intimidation. An April 1993 progress note shows that the veteran complained of continued difficulty with his memory that the examiner opined was related to his difficulty with concentration. The examiner noted that the veteran's psychiatric symptoms were long-standing and opined that the veteran was unemployable as a result of his psychiatric disability. The veteran testified at his May 1993 travel board hearing that his psychiatric disability had actually worsened and that psychotropic medications given him for his PTSD had actually caused other physical disabilities. Further, the veteran testified that VA's attempts to "mainstream" him into society upset him and resulted in physical disabilities. He stated that he had been married and divorced four times, lived alone and had no friends. He testified that when he was around a group of people he became agitated, nervous and paranoid. The veteran stated that he had not been hospitalized since 1981, but had sought treatment from VA facilities at Riviera Beach from 1984 to 1987, and at Fort Myers from 1987 to the date of the hearing. He stated that he had problems with his memory and concentration. He also testified that he had not worked since 1980 and had applied and been rejected for twenty-seven positions in the previous four months. A total rating will not be reduced without an examination showing material improvement in physical or mental condition and must be considered in the context of all the evidence of record. Further, if material improvement is shown, it must be considered whether it resulted under the ordinary conditions of life. 38 C.F.R. § 3.343. A careful review of the evidence of record shows no material difference in the veteran's psychiatric disability as noted in his August 1988 VA compensation examination report than that noted in his December 1991 VA compensation examination report. Further, contemporaneous VA treatment records show no material improvement in the veteran's psychiatric disability. Moreover, the December 1991 VA examiner did not report the detailed mental status findings needed for adjudication purposes, nor did he assess the degree of social and industrial impairment resulting from the veteran's PTSD. Where the service-connected evaluation is reduced without observing the applicable law, the rating decision upon which it is based is void from its inception, and the prior disability evaluation must be reinstated retroactive to the effective date of the reduction. Schafrath v. Derwinski, 1 Vet.App. 589, 595-96 (1991). Therefore, the Board is of the opinion that material improvement in the veteran's PTSD was not adequately established by the evidence of record at the time of the rating decision reducing the 100 percent rating. Consequently, restoration of a 100 percent rating is warranted. 38 C.F.R. § 3.343. ORDER Restoration of a total schedular evaluation for PTSD is granted, effective the date of reduction. SHANE A. DURKIN 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.