Citation Nr: 21076160 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-52 598 DATE: December 22, 2021 ORDER Entitlement to a restoration of a 100 percent rating for schizophrenia (previously rated as psychotic disorder, NOS) effective October 1, 2016 is granted. FINDING OF FACT The most probative evidence of record shows that the Veteran was not provided an adequate notice of the August 2015 VA examination. CONCLUSION OF LAW The criteria for restoration of a 100 percent rating for schizophrenia (previously rated as psychotic disorder, NOS) have been met for the period beginning October 1, 2016. 38 U.S.C. §§ 1154, 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 3.655, 4.2, 4.3, 4.7, 4.10, 4.13, 4.130, Diagnostic 9210 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 2007 to January 2008 which includes the Army National Guard. This matter came to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in April 2019 for additional development of the record. The development has been completed and the case has now been returned to the Board for further appellate action. Rating Reduction-Schizophrenia The Veteran challenges the reduction of the rating for her schizophrenia from 100 percent to 0 percent disabling and contends that her overall health including her schizophrenia has not improved, but rather has become worse. See Statement in Support of Claim received October 23, 2015. The Board acknowledges that it is questionable whether the Veteran received adequate notice of the August 2015 VA examination as well as subsequent examinations in January 2017 and August 2017. There is no evidence of record that Veteran was notified regarding the VA examinations noted above. In this regard, the record shows that a January 2010 rating decision granted the Veteran service connection for an acquired psychotic disorder claimed as schizophrenia and rated it as 100 percent disabling effective July 29, 2009. In a September 2015 rating decision, the RO proposed to reduce the Veteran's psychotic disorder rating from 100 percent disabling to 0 percent disabling and notice of this proposal was mailed to her later that same month. The Veteran's overall combined rating would decrease from 100 percent to 10 percent because of the reduction. See Correspondence received September 11, 2015. This reduction of benefits was precipitated by the Veteran's failure to appear at an August 2015 VA examination. A July 2016 rating decision reduced the Veteran's psychotic disorder from 100 percent disabling to 0 percent disabling, effective October 1, 2016, and notice of this action was mailed to her later the next month. The provisions of 38 C.F.R. § 3.105(e) allow for the reduction in evaluation of a service-connected disability when considered warranted by the evidence, but only after following certain procedural guidelines. See also 38 C.F.R. § 4.1 (a disability may require re-ratings over time in accordance with changes in law, medical knowledge, and the Veteran's condition). As stated above, the Veteran was notified of the RO's intent to reduce her rating for her acquired psychiatric disorder by a letter dated in September 2015. Thereafter, she was provided notice of her right to testify at a pre-determination hearing and given at least 60 days in which to present additional evidence. See 38 C.F.R. § 3.105(e), (h). Final action to reduce the rating for her acquired psychiatric disorder was taken pursuant to 38 C.F.R. § 3.105(e) in a July 2016 decision. The rating reduction was made effective beginning October 1, 2016. Consequently, the Board finds that the RO did not violate any of the procedures required under § 3.105--the Veteran was notified of her rights, given an opportunity for a hearing and time to respond, and the rating reduction was made effective no sooner than permitted ("the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires"). 38 C.F.R. § 3.105(e). However, a rating reduction is warranted only where the evidence contains thorough medical examinations demonstrating an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421; Also see Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014) ("Thus, it is well established in the Court's case law that VA cannot reduce a Veteran's disability evaluation without first finding, inter alia, that the Veteran's service-connected disability has improved to the point that he or she is now better able to function under the ordinary conditions of life and work."); Faust v. West, 13 Vet. App. 342, 349 (2000) (noting that VA must review the entire history of the Veteran's disability, ascertain whether the evidence reflects an actual change in the disability, and ascertain whether the examination reports reflecting such change are based upon thorough examinations). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. The Board must establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted. Green v. Nicholson, 21 Vet. App. 512 (2006). Additionally, the Board notes that "the duty to assist is not always a one-way street. If a Veteran (appellant) wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the purgative evidence." Wood v. Derwinski, 1 Vet. App. 190. 192 (1991), See also Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, while the VA does have a duty to assist the Veteran (appellant) in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the Veteran (appellant) to keep the VA apprised of their whereabouts. If she does not do so, there is no burden on the VA to "turn up heaven and earth" to find her. Hyson v. Brown, 5 Vet. App. 262 (1993). Furthermore, governing regulations are clear that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a Veteran, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b), 38 C.F.R. § 3.655(a). Additionally, 38 C.F.R. § 3.655(b) provides that when a claimant fails to report for an examination scheduled in conjunction with a claim for increase, the claim shall be denied. Given the above criteria, the Board finds that the reduction was improper as the evidence does not establish that there was an improvement in the disability under the ordinary conditions of daily life and work. See Murphy, supra. To the contrary, the reduction was made based on the Veteran not appearing for an August 2015 VA examination. However, the record shows that she did not receive adequate notice of the August 2015 VA examination. The record reflects that the Veteran had a transient lifestyle based upon her living conditions whether being homeless again in 2014, getting married in April 2015 in Nevada while living in California, getting pregnant and moving to Louisiana to live with her parents in law in 2017. The evidence shows that the VA had the Veteran's California and Louisiana addresses but did not send any notices for the August 2015, January 2017, or August 2017 VA examinations. The VA examination requests reflected the Veteran's California address. See VA 21-2507 A Request for Physical examination received July 20, 2015 and December 23, 2016. Further, the record reflects that a VA examination request reflected the Veteran's old California address and a VA correspondence sent to the Veteran reflected the Veteran's new Louisiana address. See VA 21-2507 A Request for Physical Examination received June 13, 2017 and Correspondence received August 7, 2017. Although the VA had both addresses, there is no evidence to the contrary that the Veteran was adequately notified of any VA examinations in August 2015, January 2017, or August 2017. In contrast, an October 2019 VA notice shows that the Veteran was informed that she would be notified by a private medical facility in writing as to the date, time, and location of an examination. After being notified, the Veteran did show up for an October 21, 2019 VA examination as requested unlike previous examinations without adequate notification. Further, at the October 2019 VA examination, the examiner did find total occupational and social impairment regarding the Veteran's diagnosis of schizophrenia. Subsequently, a March 2020 rating decision granted an increased rating of 100 percent effective October 21, 2019. Previously, the record shows that a January 2010 rating decision granted the Veteran service connection for an acquired psychotic disorder claimed as schizophrenia and rated it as 100 percent disabling effective July 29, 2009. The rating decisions were based on an October 2019 VA examination and private evaluations from UCLA Harbor Hospital from May 2008 through November 2009, respectively. The Board finds that there is no evidence to the contrary that an improvement in the Veteran's disability has actually occurred but also that the improvement actually reflects an improvement in the Veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 421. Thus, an October 2019 VA examiner noted that during the day, she does very little to contribute to her mother in law's home and will often just stay in her room all day and watch TV. The examiner further noted that she is dependent on her in-laws to help her care for her two-year old daily. Her focus and concentration were notably poor, and her mood was depressed and blunted. Upon the above, the Board notes that a copy of the letter providing the Veteran with notice of the day, time, and location of the August 2015 VA examination is not of record. Moreover, without proof in the file that proper notification was sent, the Board may not presume administrative regularity. Khyn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Furthermore, the Board finds that VA fails its duty to notify and assist where it does not provide the Veteran with proper notification of a scheduled examination. 38 U.S.C. § 5103A; also see 38 C.F.R. § 3.1(q) (notification for VA purposes is a written notice sent to the claimant's last address of record). In this instance and with affording the Veteran the benefit of the doubt, the Board finds that the most probative evidence of record is that the VA had access to both Veteran's addresses and did not send any notices to either address. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.158, 3.655; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, because the notice provided to the Veteran for her August 2015 VA examination was inadequate, the Board finds that she had good cause for not showing for her VA examination(s) and the record does not contain adequate information to determine if there was an improvement in the disability under the ordinary conditions of daily life and work. See 38 C.F.R. § 3.655, Murphy, supra. Accordingly, the Board finds that the rating reduction based on her not showing for that VA examination was not proper and the 100 percent rating for her schizophrenia (previously rated as psychiatric disorder, NOS) must be restored effective the date of reduction, October 1, 2016. G. Jackson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.