Caffrey v. Brown

6 Vet. App. 377, 1994 U.S. Vet. App. LEXIS 243, 1994 WL 106051

• Court: United States Court of Appeals for Veterans Claims
• Decided: March 31, 1994
• Docket: No. 90-1511
• Status: Published

Opinions

MANKIN, Judge, filed the opinion of the Court, in which KRAMER, Judge, joined, concurring.

STEINBERG, Judge, filed an opinion concurring in part and dissenting in part.

MANKIN, Judge:

Thomas A. Caffrey (appellant) appeals an October 9, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to an increased rating and an earlier effective date for chrome undifferentiated schizophrenia, currently rated at 50% disabling. The appellant claims that the BVA erred in determining that the severity of his condition had not increased, and that the Board failed to address his entitlement to a higher rating due to individual unemploya-bility. The appellant further contends that the Board erred in determining that he was not entitled to an earlier effective date for service connection, because prior determinations were the result of clear and unmistakable error (CUE), based upon the VA’s failure to obtain private medical records requested by the appellant.

The Court finds that because the Board failed to conduct a contemporaneous examination of the appellant and assess evidence presented by him, it did not appropriately determine whether the appellant’s condition had become more severe. Further, although the appellant raised the issue of entitlement to an increased rating due to individual un-employability, the Board failed to address that claim. Last, while the appellant has raised the issue of CUE in prior determinations, the issue is not applicable here because CUE claims cannot be based upon a failure in the duty to assist. Accordingly, the Court vacates in part and affirms in part the Board’s October 9, 1990 decision, and remands the matter in part.

I. Factual Background

The appellant served in the United States Army from November 24, 1958 to February 15, 1962. In March 1964, he submitted an application for compensation or pension seeking service connection for a psychiatric disorder. The Regional Office (RO) apparently denied the appellant’s claim in a decision dated June 5, 1964. That determination became final as a result of the appellant’s failure to file an appeal within one year of the decision.

The appellant attempted to reopen his claim on June 3, 1976, and referred to treatment he had undergone at the Institute, Pennsylvania Hospital [hereinafter Institute], in March 1962. Evidence of that treatment was not submitted by the appellant and his claim was denied on August 8, 1975. The appellant again attempted to reopen his claim for service connection in December 1977 and May 1978. The RO denied his claim, and informed the appellant that new and material evidence was required to reopen a previous and finally disallowed claim. In June 1979 the appellant again attempted to reopen his claim, but again reopening was denied due to the lack of new and material evidence.

On March 24,1988, the appellant reopened his claim, and in an August 22, 1988, letter asserted that a “crucial” report of hospitalization at the Institute for the period from February 27, 1962, to May 31, 1962, was not in his VA files. The appellant stated that he had authorized the hospital to send the report to the VA, and that the report proved the appellant was admitted one week after his discharge from service. On October 11, 1988, the RO found that the report and the other evidence of record established a new factual basis warranting a grant of service connection for chronic undifferentiated schizophrenia. The RO assigned a 10% rating, effective March 24,1988, and ordered an examination to determine the current severity of the appellant’s condition.

The examination was conducted on November 28, 1988, by George Anghel, M.D. Dr. Anghel noted that the appellant last worked in 1976 with the exception of a part-time job for one month in 1985. The doctor found that reasoning and judgment were not grossly impaired and attention, orientation, memory, and intelligence were normal. He further found the appellant’s social and industrial impairment to be “moderately severe.” Based upon this medical examination, the RO issued a decision on January 9,1989, increasing the rating for chronic undifferentiated schizophrenia to 50% disabling, with an effective date of March 24, 1988.

In August 1989 the appellant filed a Notice of Disagreement (NOD) with the January 1989 RO decision, stating that his disability was 100% disabling and that his award should have an effective date prior to April 1, 1988. In his NOD, the appellant stated that an earlier effective date was warranted because he had informed the VA about his hospitalization at the Institute, and that he did not discover until sometime in 1988 that the medical records had not been forwarded. The appellant also claimed entitlement to an increased rating due to the severity of his condition and individual unemployability. With the appellant’s substantive appeal to the BVA in October 1989, he submitted a September 1989 letter from William Wood-worth, the appellant’s rehabilitation counsel- or from July 1987 to January 1988. Mr. Woodworth stated that the appellant was then substantially industrially impaired and unable to function vocationally. Mr. Wood-worth also stated that although counseling and college training were provided to the appellant, he was unable to continue with the program because his service-connected psychiatric disability had “flared up.”

The appellant also submitted a report of an evaluation conducted in December 1989 by Robert O’Toole, M.D., which stated that the appellant “is substantially impaired for entrance into the competitive labor market.” The RO reviewed the new evidence submitted by the appellant, and in December 1990 confirmed the existing rating and effective date. The Board denied entitlement to an increased rating and an earlier effective date, and the present appeal followed.

II. Analysis

A. Claim for Increased Rating

The appellant contends that the BVA erred in finding that a disability rating for chronic undifferentiated schizophrenia above 50% is not warranted. The appellant’s contention has two elements. First, the appellant argues he is entitled to an increased rating for his condition because it has become worse. Second, the appellant claims he is entitled to an increased rating based upon individual unemployability.

The VA has a duty to assist a veteran who submits a well-grounded claim. 38 U.S.C. § 5107; 38 C.F.R. 3.159 (1993); Littke v. Derwinski, 1 Vet.App. 90 (1990). This duty is not discretionary, Littke, 1 Vet. App. at 92, and it may, under appropriate circumstances, include a duty to conduct a thorough and contemporaneous medical examination. 38 C.F.R. § 3.326 (1993); Green v. Derwinski, 1 Vet.App. 121, 123 (1991); Lineberger v. Brown, 5 Vet.App. 367, 369 (1993); Waddell v. Brown, 5 Vet.App. 454 (1993). The medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed examination. Id.

In determining that the appellant was not entitled to an increased rating, the Board applied the appropriate rating codes for schizophrenia. 38 C.F.R. § 4.132, Diagnostic Codes (DC) 9201-9205 (1993). A 50% evaluation is appropriate for undifferentiated schizophrenia with considerable impairment of social and industrial adaptability. 38 C.F.R. § 4.132, DC 9201-9210 (1993). A 70% rating is warranted for severe impairment of social and industrial adaptability. Id. A 100% rating requires active psychotic manifestations of such extent, severity, depth, persistence, or bizarreness as to produce total social and industrial inadaptability. Id.

The BVA supported its determination that the appellant could be rated as only 50% disabled, 38 C.F.R. § 4.132, DC 9204, by relying on the November 1988 VA medical examination. Noting that the examination found the appellant oriented and coherent, with memory intact and no hallucinations, the examiner determined that the appellant did not satisfy the DC criteria for a higher rating. The Board recognized that the appellant had required repeated psychiatric hospitalization, treatment, and medication; however, it found that the most recent outpatient treatment did not show more than considerable impairment of social and industrial adaptability. Nonetheless, the Board should have conducted a contemporaneous examination of the appellant because the November 1988 examination is too remote from the October 1990 BVA decision to constitute a contemporaneous examination. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Under those circumstances, pursuant to its duty to assist, the VA was obligated here to obtain a new medical examination to obtain evidence necessary to adjudicate the claimant’s request for an increased rating. Id.

VA regulations specifically require the performance of a new medical examination in instances such as the present case. “Reexaminations ... will be requested whenever VA determines there is a need to verify ... the current severity of a disability.” 38 C.F.R. § 3.327(a) (1993). In assessing the current severity of a disability, “reexaminations will be required if ... evidence indicates there has been a material change in a disability or that the current rating may be incorrect.” Id. In this case, the appellant presented the letter from the rehabilitation counselor, Mr. Woodworth, tending to suggest that the appellant’s condition had become worse. Furthermore, the appellant presented Dr. O’Toole’s psychological examination report, prepared in December 1989, which also tended to suggest that the appellant’s condition was more severe than his rating indicated. Thus, the appellant had presented evidence indicating both that there had been a material change in his condition, and that his 50% rating was insufficient. Therefore, the Board failed to conduct the reexamination of the appellant that was required in accordance with both the holdings of this Court and VA regulations. The Board’s October 9,1990, decision with regard to this matter must be vacated and the matter remanded for further development and findings consistent with this opinion.

The appellant also asserts that the Board erred in failing to assess his entitlement to a higher, including total, disability rating due to individual unemployability. The appellant claimed entitlement to an increased rating due to individual unemploya-bility in both his NOD and substantive appeal to the BVA. In fact, included with the substantive appeal was the letter by the appellant’s rehabilitation counselor stating that the appellant was substantially industrially impaired and unable to function vocationally. The appellant also submitted Dr. O’Toole’s December 1989 report stating that the appellant was substantially impaired for entrance into the competitive labor market.

While the appellant’s request for an increased rating due to individual unemploya-bility is apparent from all of the appellant’s pleadings, the Board failed to address this claim and the supporting evidence in its October 9, 1990, decision. This Court has held that where the Board has failed to adjudicate a claim which is reasonably raised by a liberal reading of the claimant’s pleadings, the Board has committed error. Fanning v. Brown, 4 Vet.App. 225, 228-29 (1993). Having examined the appellant’s pleadings in this matter, we find that the issue of individual unemployability was reasonably raised. Therefore, the Board’s failure to consider the issue was error, and the matter must be remanded for a readjudieation consistent with this opinion.

Finally, 38 C.F.R. § 4.7 (1993) directs that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned where the disability picture more nearly approximates the criteria for that rating. The VA is instructed to give the veteran the benefit of the doubt where the evidence in a case is in relative equipoise. 38 U.S.C. § 5107(b). “In a case where there is significant evidence in support of an appellant’s claim, as there is here, the Board must provide a satisfactory explanation as to why the evidence was not in equipoise.” Williams v. Brown, 4 Vet.App. 270, 273-74 (1993). The Board, however, has failed to explain why the appellant was assigned his present rating rather than a higher rating. We find that there was significant evidence in support of the appellant’s claim, and that the Board failed to provide sufficient reasons or bases for its conclusion that the evidence was not in equipoise. Accordingly, the Board’s failure to do so was error, and the matter must be remanded for a readjudication consistent with this opinion.

B. Entitlement to Earlier Effective Date

The appellant claims the Board erred in finding that he is not entitled to an earlier effective date for the service connection of his undifferentiated schizophrenia. The Board based its decision on the finding that the June 1964 RO denial was a final decision, and that the appropriate effective date for the appellant’s present service connection was the date the reopened claim was received following the final disallowance. 38 C.F.R. § 3.400 (1993). The appellant asserts that he advised the VA in his 1975 attempt to reopen his claim that he had been hospitalized at the Institute for a nervous breakdown in 1962, and that the VA’s duty to assist required that it obtain those records. The appellant contends that the VA’s failure to obtain these records was a breach of the duty to assist which resulted in the denial of his claim. Had the records been present, the appellant asserts, the record would have been complete and service connection accordingly granted at that time. Thus, the appellant essentially argues that all determinations regarding service connection made after 1975 but before the March 24, 1988, decision were the product of CUE because the decisions were based on an incomplete record.

As an initial matter, we must determine whether the appellant has properly pleaded CUE by specifying what the alleged error is, and by alleging why, if the purported CUE had not been made, the result would have been different. See Fugo v. Brown, 6 Vet.App. 40, 44 (1993). Here, the appellant has met that burden by contending that the VA was put on notice in 1975 that he was hospitalized at the Institute, but that the VA did not obtain these records, and by further contending that, had the Institute records been obtained prior to the adjudications in question, the determinations regarding service connection would have been different.

With regard to the appellant’s substantive CUE claim, the Secretary asserts that the Board did not breach its duty to assist the appellant. The Secretary argues that because the RO repeatedly advised the appellant of the need to provide new and material evidence to reopen his claim, and because the appellant failed to provide this evidence, no duty to assist the appellant ever arose. In support, the Secretary quotes this Court:

Where the VA notifies a claimant of the need for further evidence and the claimant fails to respond within one year of that notice, the claim is deemed to have been abandoned.... [Individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establish allowance of benefits.

Morris v. Derwinski, 1 Vet.App. 260, 264 (1991). See also 38 C.F.R. § 3.158(a) (1993). While the Secretary is certainly correct that a claimant has a responsibility to cooperate with the VA, his reliance on this proposition in the present case is misplaced.

This Court has held that a claimant does not always need to make a specific request that the VA procure private medical records. Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992); 38 U.S.C. § 5107(a) (VA has duty to assist); Pritchett v. Derwinski, 2 Vet.App. 116, 122 (1992) (duty to assist includes obtaining private medical records); accord Littke, 1 Vet.App. 90. The duty to assist may arise when a claimant simply refers to the private medical examinations or treatments without making a specific request. Ivey, 2 Vet.App. at 322. In this instance, the duty to assist arose when the appellant referred to his treatment at the Institute, and it was not nullified by the appellant’s purported failure to “provide new and material evidence,” since it was the VA’s duty to obtain that evidence in view of its relevance to proper adjudication of the claim. Accordingly, we find that the VA’s failure to assist the appellant obtain his records from the Institute was a breach of the duty to assist.

In the case of Porter v. Brown, 5 Vet.App. 233 (1993), the appellant made a similar claim of an earlier effective date for a grant of service connection based on an assertion of CUE resulting from the VA’s failure to perform its duty to assist. In that case, the Court found that CUE could not be found as a result of a breach of the duty to assist where the asserted basis of the breach was the VA’s failure to obtain records that were not developed until after the disputed adjudication took place. Id. at 236-37. The Court left open the question of whether a claim of CUE may ever be based upon a breach of the duty to assist. Id.

In this case, the VA’s failure to assist the appellant obtain private medical records was prior to the occurrence of the disputed adjudication. The VA’s failure resulted in the creation of an incomplete rather than incorrect record. We have held that “[a] determination that there was a ‘clear and unmistakable error’ must be based on the record and law that existed at the time of the prior ... decision.” Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc). Thus, a claim of CUE is based upon an assertion that there was an incorrect application of the law or fact as it existed at the time of the disputed adjudication. Id. Since an analysis of whether CUE has been committed may only proceed on the record, id., evidence that was not part of the record at the time of the prior determination may not form the basis of a finding that there was an act of clear and unmistakable error.

While it is true that an incomplete record may ultimately lead to an incorrect determination, it cannot be said that an incomplete record is also an incorrect record. If the facts contained in the record are correct, it is not erroneous, although not embodying all of the relevant facts. Rather, an incomplete record is just that — incomplete. It allows for further development of facts and law to advance the veteran’s claim. “New or recently developed facts or changes in the law subsequent to the original adjudication may provide grounds for reopening a case or for a de novo review but they do not provide a basis for revising a finally decided case.” Id. at 313. Thus, an incomplete record, factually correct in all other respects, is not clearly and unmistakably erroneous. This is true even in the present case where the cause of the record’s incompleteness is the VA’s breach of the duty to assist. In short, the VA’s breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record. As unjust as this finding may appear, it is dictated by the law by which we are bound.

III. Conclusion

Upon consideration of the record, the appellant’s informal brief, and the Secretary’s motion, the October 9, 1990, decision of the Board of Veterans’ Appeals is affirmed in part, and vacated in part, and the matter is remanded in part for further proceedings consistent with this opinion.