Best v. Brown

10 Vet. App. 322, 1997 U.S. Vet. App. LEXIS 540, 1997 WL 370334
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 30, 1997
DocketNo. 95-0030
StatusPublished
Cited by20 cases

This text of 10 Vet. App. 322 (Best v. Brown) 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
Best v. Brown, 10 Vet. App. 322, 1997 U.S. Vet. App. LEXIS 540, 1997 WL 370334 (Cal. 1997).

Opinions

IVERS, Judge:

The appellant appeals a September 13, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) denying an earlier effective date for a 100% rating for post-traumatic stress disorder (PTSD), and also finding that there was no clear and unmistakable error (CUE) in a 1981 VA rating decision which denied service connection for generalized anxiety disorder along with other psychiatric disorders. Robert W. Best, BVA 94-15196 (Sept. 13, 1994). On December 19, 1995, the Court issued an order vacating and remanding that part of the decision that denied a 100% rating for PTSD prior to July 16,1990. The Court has jurisdiction over the remaining issue pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will dismiss the appeal.

I. Background

The appellant served on active duty in the United States Army from September 5,1967, to June 4, 1970. Record (R.) at 110. Neither his preinduction nor separation physical examination revealed any psychiatric disorders. R. at 38-41, 42-45.

Service personnel records show that the appellant served in the Republic of Vietnam as a light weapons infantryman from March 10, 1968, to March 8, 1969. R. at 110. During his Vietnam tour, the appellant was wounded in combat on two occasions, taking shrapnel to his head and chest. R. at 45, 68, 69, 87, 104. The appellant received numerous commendations for his service, including two Purple Heart medals. R. at 110. Service medical records contain no documentation of psychiatric diagnosis or care. The appellant, however, listed that he had received treatment for a “nervous condition” in Tay Ninh, Vietnam, in 1969. R. at 137, 148.

In October 1979, the appellant filed a VA Form 21-526, Veteran’s Application for Compensation or Pension, seeking entitlement to service connection for residuals of pneumonia, shrapnel wounds, a foot condition, and a “nervous condition.” R. at 136-39. A hospital summary, also dated in October 1979, showed that the appellant “probably” suffered from a personality disorder “characterized by immature and impulsive behavior ... exacerbated by some degree of alcohol abuse.” R. at 143.

The appellant underwent a complete VA medical examination for purposes of disability evaluation in late February 1980. R. at 153-59. During that examination, the physician diagnosed the appellant with “recurrent depressions with passive aggressive personality.” R. at 156. A rating decision issued on March 6, 1980, awarded the appellant service connection for residuals of a shell fragment wound to the head, and for tinea pedis (foot fungus), both rated noncompensable. R. at 161-62. Service connection for pneumonia was denied, and the rating decision did not include an adjudication on the appellant’s claimed “nervous condition.” Ibid.

In May 1981, the appellant underwent another VA examination in which he was diagnosed with the following: (1) generalized anxiety disorder; (2) alcohol abuse; (3) adjustment reaction; (4) mixed personality disorder with antisocial, passive-aggressive, and narcissistic features; (5) Wolff-Parkinson-White syndrome; (6) polycythemia (increase of red blood cells); (7) moderate to severe psychosocial stressors; and (8) poor level of adaptive functioning. R. at 166-69. Following the receipt of these examination results, the VA regional office (RO) issued a rating decision denying service connection for generalized anxiety disorder, with personality disorders and adjustment reaction. R. at 173-74. In the decision, dated August 13, 1981, the RO stated:

A personality disorder is a constitutional or developmental abnormality, not a disability for which S[ervice] C[onnection] may be allowed. Psyehoneurotic disorders were not incurred or aggravated during active service. The adjustment reaction is an acute and transient condition, not related to any incident of active service. Alcohol abuse is not a disability for which SC may be allowed.

R. at 174. VA sent the appellant a letter, dated September 1, 1981, notifying him that he had been awarded service connection for [324]*324the shell fragment residuals and tinea pedis, and that he had been denied service connection for personality disorder, adjustment reaction, and alcohol abuse. R. at 176. The notification letter failed to include a statement that VA had denied the appellant’s claim for generalized anxiety disorder. Ibid. There is no record that the appellant appealed the rating decision.

On March 28, 1989, the appellant filed a claim for service connection for PTSD, stating, “[Sjince my return from Vietnam, I have been experiencing severe problems with adjusting to a normal life.” R. at 215. Hospital records show that on March 21, 1989, the appellant was admitted to a VA hospital for psychiatric problems. R. at 237-42. The examining psychiatrist related that the appellant showed a lot of “instability and hostility and was tearful when he spoke of Vietnam.” R. at 239. The psychiatrist noted: “It was the consensus of Dr. Weaver and the team that the patient does have PTSD. He would best benefit from inpatient treatment.” Ibid. The final diagnosis included, inter alia, PTSD, a history of ethanol dependence, and mixed personality disorder with antisocial passive-aggressive and narcissistic features. R. at 237.

The RO awarded the appellant service connection for PTSD on October 17, 1989, rated 30% disabling, effective from March 8, 1989. R. at 307-08. On January 18, 1990, VA increased his rating for PTSD to 50%, effective from November 1, 1989. R. at 318-19. The appellant filed a Notice of Disagreement (NOD) in February 1990, arguing that his PTSD condition was greater than 50% disabling. R. at 323. On May 2, 1990, the appellant filed an appeal with the Board, requesting a 100% rating. R. at 332.

On September 18, 1990, the RO awarded the appellant a 100% rating for PTSD, effective from July 16, 1990. R. at 360-61. The appellant submitted a claim in April 1991, requesting an earlier effective date for the 100% evaluation for PTSD. R. at 374. The RO denied that claim on April 15, 1991, stating that the hospital reports of March 1989 and the VA examination of April 1989 failed to show that the appellant was totally incapacitated. R. at 377-78. The appellant filed another NOD in June 1991. R. at 395.

VA afforded the appellant a personal hearing on May 6, 1992. R. at 440-50. During that hearing, the appellant argued that in 1981, VA had misdiagnosed his PTSD as a generalized anxiety disorder. R. at 441. The hearing officer issued a decision on May 12.1992, finding that a 100% evaluation could not be assigned earlier than July 16, 1990, based upon the evidence. R. at 460-63. The appellant’s case was referred back to the rating board. R. at 463.

After reconsideration, the RO issued another rating decision denying an earlier effective date for the 100% PTSD rating. R. at 465-66. In a Supplemental Statement of the Case, issued on May 27, 1992, the RO noted that “an evaluation in excess of 100 percent disabling prior to July 16, 1990, is not in order since the medical evidence does not show the veteran had symptoms prior to that date which would warrant the 100 percent evaluation.” R. at 472. The appellant certified an appeal to the BVA on September 16.1992. R. at 479.

The Board issued a decision on December 2, 1992, remanding the case to the RO to consider whether its denial of service connection for a psychiatric disorder in August 1981 was CUE. R. at 493-96.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. McDonough
Federal Circuit, 2023
14-39 508
Board of Veterans' Appeals, 2018
14-14 791
Board of Veterans' Appeals, 2016
09-18 933
Board of Veterans' Appeals, 2016
Ivan R. Sellers v. Eric K. Shinseki
25 Vet. App. 265 (Veterans Claims, 2012)
08-08 978
Board of Veterans' Appeals, 2012
Hargrove v. Shinseki
629 F.3d 1377 (Federal Circuit, 2011)
AG v. Peake
536 F.3d 1306 (Federal Circuit, 2008)
George T. Richardson v. R. James Nicholson
20 Vet. App. 64 (Veterans Claims, 2006)
Tetro v. Gober
14 Vet. App. 100 (Veterans Claims, 2000)
Tetro v. West
Veterans Claims, 2000
Norris v. West
12 Vet. App. 413 (Veterans Claims, 1999)
Link v. West
12 Vet. App. 39 (Veterans Claims, 1998)
Costa v. West
11 Vet. App. 102 (Veterans Claims, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
10 Vet. App. 322, 1997 U.S. Vet. App. LEXIS 540, 1997 WL 370334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/best-v-brown-cavc-1997.