Citation Nr: 22016830 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 19-03 961 DATE: March 23, 2022 ORDER A reduction in evaluation from 100 percent to 0 percent for posttraumatic stress disorder (PTSD) effective October 1, 2017 was improper, and a 100 percent evaluation is restored. FINDING OF FACT 1. The Veteran's incarceration constituted good cause for his failure to report to a scheduled VA examination. 2. The reduction in the disability rating for PTSD from 100 percent to 0 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in evaluation from 100 percent to 0 percent for PTSD effective October 1, 2017 was improper. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.343, 3.344, 3.655 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1990 to September 1990 and from January 1991 to April 1991. This appeal is before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In March 2022, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript has not yet been included in the claims file. However, there is no prejudice to the Veteran since this decision constitutes a complete grant of the claim. In March 2022, the Veteran's representative filed a motion to advance on the docket due to severe financial hardship. This motion is granted, and the appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(b); 38 C.F.R. § 20.902(c). Whether a reduction in evaluation from 100 percent to 0 percent for PTSD effective October 1, 2017 was proper The Veteran disputes his reduction in rating for PTSD. His rating was reduced solely based on his failure to attend a scheduled VA examination. He was unable to attend the examination because of his incarceration. The provisions of 38 C.F.R. § 3.105(e) allow for a rating reduction when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The Veteran must then be given 60 days to submit additional evidence and 30 days to request a predetermination hearing. Then, a rating action will be taken to effectuate the reduction. The effective date of the reduction must be after the last day of the month in which a 60-day period from the notice of the rating action ends. 38 C.F.R. § 3.105(e), (i). The evidence demonstrates that the procedural requirements for a rating reduction were followed here. In the January 2017 rating decision, the RO proposed to reduce the rating for PTSD from 100 percent to 0 percent. The Veteran was notified of the proposed reduction by a January 2017 letter and notified that he had 60 days to respond. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When VA makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). The Board bears the burden to establish that rating reduction is warranted. Hedgepeth v. Wilkie, 30 Vet. App. 318, 327 (2018) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)). Total disability ratings, when warranted by the severity of the condition and not granted purely because of individual unemployability or hospital, surgical, or home treatment will not be reduced in the absence of clear error without examination showing material improvement in physical or mental condition. 38 C.F.R. § 3.343. For reduction of ratings in place for at least five years, additional protections apply. Rating agencies are to 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 medical-industrial history be reviewed to ascertain whether the recent examination was full and complete, including all special examinations indicated as a result of general examination and the entire case history. This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. 38 C.F.R. § 3.344(a). Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. Moreover, though material improvement in the physical 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. If doubt remains, after according due consideration to all the evidence developed, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). Failure to report for scheduled reexamination without good cause is grounds for reduction. 38 C.F.R. § 3.655(a). When a claimant fails to report, notice of the proposed reduction is to be given with an allowance of 60 days for the claimant to indicate willingness to report for reexamination. 38 C.F.R. § 3.655(c)(1). If such indication is received, the reduction is to be deferred. Failure to report for the rescheduled reexamination is cause for immediate reduction. 38 C.F.R. § 3.655(c)(3). In fulfilling VA's duty to assist, incarcerated individuals are entitled to the same care and consideration given to their fellow veterans, and such assistance must be tailored to the peculiar circumstances of confinement. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (quoting Wood v. Derwinski, 1 Vet. App. 190 (1991)); see also Jonathan Hager, VA's Duty to Assist Incarcerated Veterans, 1 Veterans L. Rev. 231 (2009). Service connection for the Veteran's PTSD was originally granted in an October 2011 rating decision which assigned a 100 percent rating based on a June 2011 VA examination conducted while the Veteran was incarcerated in a state prison. VA issued a request for an examination to reevaluate his disability in July 2016, but this examination was cancelled due to his continued incarceration. In October 2016, VA was informed by the Veteran's new correctional institution that it would not permit outside examiners to enter the prison to conduct examinations. VA was instructed that the Veteran could ask prison personnel to conduct the examination, and he was so informed in a November 2016 letter. The Veteran replied, indicating that his disability had not improved and that the staff at the prison was neither authorized nor qualified to perform review examinations for PTSD. He indicated his preference to be evaluated by VA personnel. In January 2017 VA proposed to reduce the rating to 0 percent. The Veteran indicated his willingness to report for reexamination in a February 2017 correspondence. The rating was reduced in an October 2017 rating decision based on a finding that the Veteran's inability to attend his examination by reason of incarceration was the equivalent of a failure to report. The Board finds that the Veteran's incarceration constituted good cause for his failure to report to a scheduled VA examination. The evidence in the record shows that the Veteran desired to be examined by a VA examiner and was only prevented from being examined by the policies of the institution in which he was incarcerated. The Board thus finds no indication of bad faith examination avoidance on the part of the Veteran, whose absence was determined entirely by circumstances beyond his control until his release from prison in June 2021. The persistence of these circumstances over a period of years is irrelevant as to whether the Veteran had good cause to be unavailable. As such, the Board finds that good cause was present. Failure to report to a VA examination with good cause is not a valid basis to reduce a rating under 38 C.F.R. § 3.655. Moreover, a reduction of a 100 percent rating without a showing of improvement in the Veteran's ability to function under the ordinary conditions of life and work is improper per se under 38 C.F.R. § 3.343. For these reasons, the Board finds that the reduction in the Veteran's rating was improper, and his 100 percent rating is restored effective October 1, 2017. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, Counsel 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.