Bolton v. Brown

8 Vet. App. 185, 1995 U.S. Vet. App. LEXIS 656, 1995 WL 514563
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 30, 1995
DocketNo. 94-342
StatusPublished
Cited by15 cases

This text of 8 Vet. App. 185 (Bolton 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
Bolton v. Brown, 8 Vet. App. 185, 1995 U.S. Vet. App. LEXIS 656, 1995 WL 514563 (Cal. 1995).

Opinions

[187]*187FARLEY, Judge, filed the opinion of the Court.

IVERS, Judge, and STEINBERG, Judge, filed separate concurring opinions.

FARLEY, Judge:

This is an appeal from a January 12, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which denied the appellant’s claim for an increased rating for post-traumatic stress disorder (PTSD). The appeal is timely, and this Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court will vacate the Board’s decision and remand the matter for readjudication consistent with this opinion.

I.

The appellant served on active duty from November 1968 to August 1971. Record (R.) at 5, 18. In November 1984, the appellant was incarcerated at the Morgan County Regional Correctional Facility at Wartburg, Tennessee, with a scheduled release date of March 3, 2005. R. at 123. In July 1985, he received a 10% rating for service-connected PTSD. R. at 17-20, 22.

In March 1991, the appellant filed a claim for an increased rating. R. at 77, 99. He wrote that he had been denied jobs because of his PTSD, that he had worked alone in his prison job in the laundry, that his medical condition had deteriorated because of his PTSD, and that he had suffered a “flashback” which had resulted in injuries. R. at 78-79. The appellant submitted a medical treatment record which recorded that on July 16, 1987, he had complained of “anxiety, flashbacks in [the] twilight sleep [and] nightmares.” R. at 56, 95. The prison psychologist had diagnosed “anxiety [secondary] to [PTSD].” Ibid. The treatment record also reported that on July 21, 1987, the appellant had received medical attention after reporting that he had been sleeping, “and [the] next thing he knew [he] had fallen [and] struck [his] head on [the] door.” Ibid. The medical practitioner had noted a superficial one inch laceration to the appellant’s forehead and a small raised area on his nose. Ibid. The appellant also provided an affidavit from Pat Lankford, a correctional officer at the county facility, which stated:

[A]lthough I have no formal medical training, I feel strongly that Oscar Bolton exhibits personality traits which would seriously handicap him in getting and holding a job in a free society. However, while Oscar has a job as a “landury (sic) man[,]” he has no co-workers, as the landury (sic) job is a one-man-operation.
Further, I have observed that Oscar is a “loner”, who has minimal interaction with his fellow inmates, and does not participate in any extracurricular activities.

R. at 81. The appellant also submitted “Job Register Placement” forms which recorded that in September and October 1990, the appellant had requested to work as a carpenter, upholsterer, sewing machine operator, “Comm.Cleaner,” and building trades apprentice, but that all of his requests had been denied “due to medical limitations.” R. at 90-94.

In March 1991, the VA regional office (RO) denied the appellant’s claim stating that “There is no current evidence showing his disability has increased in severity.” R. at 99. In September 1991, the appellant filed a Notice of Disagreement (R. at 103), and in October 1991, he perfected his appeal to the Board. R. at 112. In a decision dated April 28, 1992, the Board remanded the appellant’s claim to the RO, noting that the appellant had not received a psychiatric examination since June 1989. R. at 125-28. The Board ordered the RO to “take appropriate action to obtain copies of any clinical records that may exist reflecting psychiatric or psychological treatment” during his incarceration, and that the RO

should take appropriate action to have the veteran undergo a VA psychiatric examination for the purpose of ascertaining the current nature and extent of his psychiatric disablement. The examiner is specifically requested to comment on the degree of social and industrial impairment attributable to [PTSD], All studies deemed necessary should be performed. The claims folder should be made available to the [188]*188examiner for review prior to the examination.

R. at 127.

The medical treatment records from the Tennessee Department of Corrections were received (R. at 136-55), including a March 1986 and a May 1990 “Health-Related Work Classification Summary” which reported that the appellant had been placed on limited duty with “periodic attention required.” R. at 137-38, 148. The examiner also noted three specific work limitations (i.e., “[sjhould not work around potentially dangerous machinery or equipment”), and annotated that the appellant’s physical disabilities were “[o]rtho-pedic [disease or [disorder ?? by [history] ... [and] [p]sychosis/[m]ental [ijllness.” Ibid. The records also included a mental health evaluation for the Board of Parole dated May 30,1990, by Dr. Nguyen, a fourth-year psychiatry resident at Meharry Medical College. R. at 150-53. Dr. Nguyen reported that he had conducted a clinical interview with the appellant and reviewed the appellant’s institutional files including a “Facts of the Offense report.” R. at 150. He concluded that “Mr. Bolton has a long history of conduct disorder from his childhood that involved his adulthood with Antisocial Personality Disorder. He has no evidence of [PTSD] from the Vietnam war.” R. at 152.

In September 1992, the RO wrote to the Chief of the VA Outpatient Clinic in Knoxville, Tennessee, requesting that he arrange for a VA examination of the appellant, as required by the BVA remand, by coordinating with the warden of the correctional facility, and enclosed the appellant’s claims folder for the examiner’s review. R. at 164. However, Dr. Howard, Chief Medical Officer at the VA Knoxville Outpatient Clinic, responded by writing that the “clinic is unable to find a fee base psychiatrist [who] will do an examination at the institution. [Also,] Mr. Luther Townley, Health Administrator at the institution ... does not have any physician [who] will do this type of specialized examination.” R. at 172.

In January 1993, the RO issued a confirmed rating decision denying the appellant an increased rating. R. at 176-77. The RO referenced Dr. Nguyen’s report, and then concluded:

A review of your VA files shows that your appeal ... was remanded to this office for additional medical evidence. However, since you are incarcerated at the Morgan County Regional Correction Facility, we have been unable to obtain the necessary VA examination, as requested by the [BVA], in order to reconsider your claim for an increased evaluation. Therefore, the available medical evidence does not show an increased evaluation is warranted and your [PTSD] remains 10% evaluated.

R. at 177. In February 1993, the appellant requested an examination “as order[ed] by the BVA.” R. at 184. In response, the RO inquired when the appellant expected to be released from prison, informed him that “since you were incarcerated, the examination could not be done,” and advised him that, “since no current medical evidence is available, no change is warranted in the current evaluation of your [PTSD].” R. at 188. The appellant responded that he did not know when he would be released from prison. R. at 190.

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Cite This Page — Counsel Stack

Bluebook (online)
8 Vet. App. 185, 1995 U.S. Vet. App. LEXIS 656, 1995 WL 514563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolton-v-brown-cavc-1995.