PREC 9-92 Effect of Sabol v. Derwinski, US Vet.App. No. 90-11 (March 3, 1992) Citation: Vet. Aff. Op. Gen. Couns. Prec. 9-92, VAOPGCPREC 9-92, 1992 QUESTIONS PRESENTED:
1. Are the changed rating criteria for psychiatric disorders, effective February 3, 1988, a "liberalizing law, or a liberalizing VA issue" subject to the provisions of 38 C.F.R § 3.114?
2. Do Fletcher and Sabol require a revision upward in ratings for neuropsychiatric disorders in the absence of evidence supporting a rating reduction? If so, at what percentage levels of disability (between 0 and 100 percent)? If so, must the BVA remand cases involving ratings of neuropsychiatric disorders for the regional office to revise the rating, or may the BVA adjust the rating itself?
3. When there is no evidence, or no evidence of a change in the level of disability, before and after February 3, 1988, must the BVA find error in rating decisions which continued disability ratings at the same level? If so, to which percentage ratings (between 0 and 100 percent) would error apply?
4. When there is evidence of a change in disability, but the evidence does not demonstrate sustained improvement, so as to justify a rating reduction under 38 C.F.R. § 3.344 for cases in which the rating has been continued for a long period at the same level, must the BVA find error in rating decisions which continued disability ratings at the same level? If so, to which percentage ratings (between 0 and 100 percent) would error apply?
5. Must the BVA make a specific finding that the evidence is sufficient to permit a reduced rating, including a reduced rating under 38 C.F.R. § 3.344, in order to conclude that a rating continuing a rating in effect prior to February 3, 1988, is
supported by the evidence?
HELD:
1. Where an increased rating is occasioned only by the revision of criteria for rating psychoneurotic disorders which became effective February 3, 1988, the increased rating is to be considered based on a liberalizing VA issue per 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114.
2. The Sabol and Fletcher decisions do not require automatic revisions upward in psychoneurotic disability ratings, even absent any change in the evidentiary record upon which they are based. However, where the same record which was the basis for a rating of 50% under the pre-1988 criteria supports current findings of severe impairment of the ability to establish or maintain effective or favorable relationships with people and in the ability to obtain or retain employment, a rating of 70% is now warranted.
3. Consistent with the above, the Board should not automatically find error in decisions which continued pre-February 3, 1988 ratings at the same level after that date on the basis of the same evidentiary records.
4. 38 C.F.R. § 3,344 does not apply to situations in which a prior disability rating is continued despite the adoption of liberalized rating criteria in the interim.
5. If it is to affirm a post-February 3, 1988, decision continuing a rating assigned prior to that date, the Board must make factual findings supporting the rating under the current rating criteria and, as with all its decisions, provide reasons
or bases which adequately justify the findings.
1 The Court apparently assumed that the Board's 1989 characterization of the veteran's disability as being productive of "not more than" substantial social and severe industrial impairment was the equivalent of a finding that the disability
was productive of those levels of impairment, thus the Court's conclusion that such findings may translate into eligibility for a 70% rating under the current schedule. This assumption may be erroneous on its face, because the 1989 Board section limited itself to the issue certified to it, i.e. entitlement to a rating
in excess of 50%.
VETERANS ADMINISTRATION GENERAL COUNSEL
Vet. Aff. Op. Gen. Couns. Prec. 9-92
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