Brownrigg v. Derwinski

3 Vet. App. 244, 1992 U.S. Vet. App. LEXIS 305, 1992 WL 228781
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 21, 1992
DocketNo. 91-1120
StatusPublished

This text of 3 Vet. App. 244 (Brownrigg v. Derwinski) 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
Brownrigg v. Derwinski, 3 Vet. App. 244, 1992 U.S. Vet. App. LEXIS 305, 1992 WL 228781 (Cal. 1992).

Opinion

[245]*245MEMORANDUM DECISION

STEINBERG, Associate Judge:

The pro se appellant, Vietnam veteran Robert B. Brownrigg, appeals from a March 5, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying service-connected disability compensation for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD). Because the Court finds that the Board’s findings of fact are not clearly erroneous and the Board did not commit prejudicial error in its adjudication, the decision will be affirmed.

The veteran served on active duty in the U.S. Army from July 2, 1965, to June 21, 1968, including service in Vietnam. R. at 1. At the time of his entry into service, a prior history of psychiatric problems, including a 1961 hospitalization, was noted. R. at 4. Service records do not reveal any treatment or complaints of psychiatric problems in service; nor do they indicate whether the veteran ever engaged in combat with the enemy, although his participation in “[Vietnam] Counter Offensive Phase III” is noted. R. at 64.

Subsequent to service, the veteran was hospitalized in 1972 for problems which were then diagnosed to include schizophrenia. R. at 66. A private medical report from 1979 contains a diagnosis of “a mixture of hysterical and passive-aggressive dependent personality”. R. at 71. A 1980 medical report from a Veterans’ Administration (now Department of Veterans Affairs) (VA) outpatient clinic (OPC) in Rochester, New York contains diagnoses of explosive personality disorder and antisocial personality disorder. R. at 90. A private medical report in May 1986 revealed diagnoses of “Mixed personality disorder: schi-zotypical, passive-aggressive, histrionic, and asocial features”, and “Intermittent Explosive Disorder”. R. at 98. A June 1986 report from a VAOPC noted that the veteran complained of suffering flashbacks related to Vietnam; the examiner’s impression was “personality disorder ... [rule out] PTSD”. R. at 130. In September 1986, the veteran was admitted to a PTSD unit at a VA Medical Center (MC) in Buffalo, New York. R. at 133-34. In December 1986, an examiner at the Rochester VAOPC diagnosed the veteran as suffering from PTSD. R. at 146.

On February 25, 1987, a VA Regional Office (RO) denied the veteran entitlement to service-connected disability compensation for PTSD, stating: “The evidence of record, when viewed as a whole, fails to show objectively verified life-threatening stressors during Vietnam service to support the current diagnosis of [PTSD] when coupled with the veteran’s prior psychiatric history.” R. at 161. On November 17, 1987, the veteran appeared at a personal hearing before the RO and testified under oath as to certain stressful events in service as well as incidents in which he engaged in combat with the enemy. R. at 181-95. In a November 1, 1987, outpatient report from an Army hospital, where the veteran received treatment as the spouse of an active duty servicewoman, the examiner noted that the veteran had “PTSD by [history]”. R. at 203. Thereafter, the RO received a February 5, 1988, letter from Dr. Tomi MacDonough, an Army clinical psychologist at Fort Hood, who stated that the veteran had asked him to submit to VA a clinical report evaluating the veteran’s condition. R. at 210. Dr. MacDonough stated that, due to the complexity of the case and the shortage of manpower at the facility, he was unable to prepare such a report within the time limit set by the VA for the submission of additional evidence. R. at 210-11.

In a November 8, 1988, decision, the BVA remanded the veteran’s claim to the RO with instructions to seek to obtain medical records from the veteran’s private hospitalization in 1961; to determine whether any psychological studies had been completed by the examiners at Fort Hood; to seek to obtain verification, from the U.S. Army and Joint Services Environmental Group (ESG), of the claimed stressors; and, once that information had been compiled, to provide for an examination by a board of two psychiatrists, with the veteran’s full claims file before them, for purposes of describing all clinical manifesta[246]*246tions of any psychiatric disorder. R. at 215-17.

The ESG was unable to verify any of the claimed stressors, apparently due to a lack of specificity as to the dates and places of the claimed stressors. R. at 222-23. The RO obtained the records of the veteran’s 1961 hospitalization. R. at 224-26. The RO also requested and obtained medical records from Fort Hood, but no clinical study from Dr. MacDonough was included with those records. R. at 232-35.

In the report of a May 7, 1990, examination pursuant to the BVA remand, a board of two VA psychiatrists, after reviewing the veteran’s records, found that there was no objective evidence of PTSD stressors in service, and that, even assuming that there were adequate stressors in service, there was “not sufficient evidence that the veteran avoids stimuli associated with the trauma or that he has a numbing of general responsiveness.” R. at 238. The examiners concluded that the diagnosis of PTSD was not justified, and that the correct diagnosis of the veteran’s condition was “personality disorder, not otherwise specified, with borderline and antisocial features”. R. at 239.

In its March 25, 1991, decision, the BVA denied service connection for an acquired psychiatric disorder, stating: “While the veteran has, in the past, been diagnosed as having various acquired psychiatric disorders, the most recent evaluation by a board of two VA psychiatrists who reviewed his records and examined the veteran resulted in a diagnosis of a personality disorder and no acquired psychiatric disorder.” Robert B. Brownrigg, BVA 91-09504, at 5 (Mar. 25, 1991).

On this appeal, the veteran requests the Court to reverse the Board’s decision and order an award of service connection for PTSD. The veteran further asserts that the Board failed either to seek to obtain or to include in the record various documents from VA and Army facilities which were pertinent to his claim. The Secretary of Veterans Affairs (Secretary) has moved for summary affirmance, and asserts, in partial response to the veteran’s arguments, that all pertinent medical records in the veteran’s file have been included in the record on appeal.

Pursuant to 38 U.S.C. § 7261(a)(4) (formerly § 4061), the Court reviews BVA factfinding under a “clearly erroneous” standard; “if there is a ‘plausible’ basis in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them”. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Here, the report of the May 1990 board of VA psychiatrists examination provides a plausible basis for the BVA’s conclusion that the veteran does not currently suffer from an acquired psychiatric disorder, including PTSD. Therefore, that conclusion is not subject to reversal as a clearly erroneous finding of fact.

The Court notes that the BVA’s statement of the reasons or bases for its conclusion does not adequately address all of the evidence favorable to the veteran. Pursuant to 38 U.S.C. § 7104(d)(1) (formerly § 4004) and the Court’s decision in Gilbert,

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Bluebook (online)
3 Vet. App. 244, 1992 U.S. Vet. App. LEXIS 305, 1992 WL 228781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brownrigg-v-derwinski-cavc-1992.