Anglin v. West

11 Vet. App. 361, 1998 U.S. Vet. App. LEXIS 982, 1998 WL 463042
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 11, 1998
DocketNo. 96-704
StatusPublished
Cited by13 cases

This text of 11 Vet. App. 361 (Anglin v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anglin v. West, 11 Vet. App. 361, 1998 U.S. Vet. App. LEXIS 982, 1998 WL 463042 (Cal. 1998).

Opinion

GREENE, Judge:

Veteran James E. Anglin appeals a May 24, 1996, Board of Veterans’ Appeals (Board) decision finding that new and material evidence sufficient to reopen claims for service connection for post-traumatic stress disorder (PTSD) and a back disorder had not been presented. He also appeals the Board’s decision that claims for a bladder dysfunction and a neurological hand condition were not well grounded. The Board decision also remanded an issue relating to the appellant’s claim for an increased rating for a hip disorder. Although the appellant argues this issue in his brief, the Court does not have jurisdiction to consider it absent a final Board decision. See 38 U.S.C. §§ 7252(a), 7261(d), 7266(a)(1). The Secretary has filed a brief seeking affirmance of the Board’s decision. The appellant urges the Court to reverse the Board’s findings. The Court has jurisdiction of the case under 38 U.S.C. § 7252(a). For the reasons that follow, the Court will affirm in part and vacate in part the Board’s decision and remand two matters.

I. FACTS

The appellant served on active duty in the U.S. Navy from July 3 to August 8, 1986. Record (R.) at 19. His enlistment medical examination did not note any disorder rele[364]*364vant to this appeal. R. at 28-29, 45. On July 11, 1986, the appellant was treated for complaints of low back injuries and hip pains resulting from his stepping into a trench while marching. R. at 32. He was diagnosed as having low back strain and mild left hip flexor muscle strain. Id. After several days of modified duty, he was returned to full duty. R. at 32-34.

On July 30, 1986, the appellant was referred to the Recruit Evaluation Unit for command counseling for “personal problems and stress.” R. at 35. The psychologist’s mental status evaluation noted that Anglin was:

[Rjemarkable for anxiety, dysphoria ..., suicidal threats [stating] “unless I get out of here I’m coming apart, something’s wrong with me.” No evidence of psychosis. He has agreed that he will report ASAP to MHU [mental health unit] if he believes he is at risk of harming himself. ... He reports being physically abused by his father (Ret. USN). He says[,] “I felt guilty about not doing better.” He describes a pattern of immature [and] dependant behavior typified by living [with] his wife of one year at his parents[’] home. He has had a variety of jobs [and] thought the navy would offer him security.... He says that he has been drinking approximately 1 pint of hard liquor per day for “some time.” He is quite worried when questioned about ETOH [ethyl alcohol] use. He reported “trying to stop drinking at 19 yrs.” old — but was unsuccessful.
It is likely that [ ] Anglin’s current psychological condition may deteriorate if he returned. It’s my opinion that he is unsuitable for naval service.

R. at 35-36. As a result, the appellant was evaluated as possessing an adjustment disorder with mixed disturbance of emotions and conduct, an immature and dependent mixed personality disorder, and defective military attitude. Id.

After falling again, the next day the appellant sought treatment for pain in his left hip. R. at 37. The treating physician opined that the appellant “could remain in service until this [hip pain] resolves; however, he desires separation from the service. We recommend he be separated for his other problems, not related.” R. at 39. The physician further noted that “his snapping l[eft] hip will resolve spontaneously [and] not require further treatment.” Id. On August 4, 1986, the appellant was examined again for his hip, and x-rays depicted a “slipped capital] epiphy-sis,” characterized as “mild” and “old.” R. at 41. The capital epiphysis is the articular end at the head of a long bone. DoRlaNd’s Illustrated Medical Dictionary 568 (28th ed.1994) [hereinafter Dorland’s]. On August 8, 1986, he received an uncharacterized entry-level separation from service. R. at 47.

On August 12, 1986, the appellant filed a claim for service connection for his left hip injury and a nervous condition. R. at 22-25. An October orthopedic examination diagnosed him as having “[ujndiagnosed hip pathology, with weakness and instability of the left hip.” R. at 56. On November 6, 1986, he had surgery performed on his left hip at the San Diego VA Medical Center. R. at 50, 119-20.

During an October 1986 VA psychiatric evaluation, the appellant alleged that on July 24, 1986, he was beaten and anally raped while at a naval hospital. R. at 57. He stated that he had informed his wife of this incident on August 8, 1986, and told a physician about the incident two weeks later. Id. He was diagnosed with acute PTSD. R. at 59; see also R. at 65, 83. The psychiatrist identified the appellant’s claimed rape as the stres-sor causing the PTSD. R. at 59. Medical records from August through October 1986 show the appellant’s participation in two therapy groups: “Victims of Violent Crime” and “Coping with Anger.” R. at 87-96.

A July 1987 rating decision denied service connection for PTSD because of the absence of credible supporting evidence of a claimed stressor. R. at 100-03. The rating decision also denied service connection for a hip disorder because an examination, including an arthrogram and x-rays, was negative for any permanent left hip disorder. Id. The appellant disagreed and submitted duplicates of his medical records and his personal state[365]*365ments asserting that he was entitled to benefits. R. at 109-79.

An October 1988 private medical examination of the appellant, performed at the request of YA, reported the following observations: (1) no bowel or bladder symptoms, (2) persistent left hip arthralgia, (3) “[l]umbar radicular syndrome left, with CAT scan evidence of small L5-S1 disc left,” and (4) a lipoma of the thoraeo-lumbar spine, which did “not appear to be connected with [h]is military service.” R. at 181-84. A lipoma is a benign tumor composed of fatty tissue. DoRLANd’s 949. In June 1988, the appellant was examined for complaints of urinary hesitancy. The physician opined that the condition “may be mild neurogenic bladder but certainly nothing severe.” R. at 191. A VA examination completed in December 1988 again diagnosed the appellant as having “PTSD, post assault and homosexual rape.” R. at 209-12. The report reiterated the appellant’s account of the events leading to the claimed assault and rape.

In January 1989, the RO (1) granted the appellant service connection for his left hip, (2) denied service connection for PTSD because of the lack of objective evidence in the record to support the alleged rape incident, and (3) denied service connection for a back disorder because the Board considered his low back condition “acute and transitory in service with no evidence of a chronic back injury in service.” R. at 268-73. He subsequently submitted further statements disagreeing with the decision and additional, including duplicate, medical documents. R. at 275-317. The RO characterized this submission as a Notice of Disagreement (NOD) and prepared a Statement of the Case (SOC). R. at 319-29. In March 1989, the appellant offered a statement explaining why he believed that he could not earlier report the rape to the doctors or law enforcement authorities because he was emotionally upset and did not trust anyone. R. at 331-44.

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Bluebook (online)
11 Vet. App. 361, 1998 U.S. Vet. App. LEXIS 982, 1998 WL 463042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anglin-v-west-cavc-1998.