Case v. Derwinski

2 Vet. App. 592, 1992 U.S. Vet. App. LEXIS 182, 1992 WL 163181
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 15, 1992
DocketNo. 90-1029
StatusPublished

This text of 2 Vet. App. 592 (Case 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
Case v. Derwinski, 2 Vet. App. 592, 1992 U.S. Vet. App. LEXIS 182, 1992 WL 163181 (Cal. 1992).

Opinion

IVERS, Associate Judge:

Appellant, Robert E. Case, appeals from a Board of Veterans’ Appeals (BVA or Board) decision which denied service connection for an acquired psychiatric disorder and for chronic prostatitis. On February 22, 1991, appellant filed an informal brief, arguing for reversal on the ground that the BVA decision was clearly erroneous. On May 20, 1991, the Secretary of Veterans Affairs (Secretary) filed a motion for summary affirmance, for acceptance of the motion in lieu of a brief, and for a stay of the proceedings. Appellant filed a reply to the Secretary’s motion on June 3, 1991. For the reasons set forth below, the BVA decision as to appellant’s prostatitis claim is vacated and remanded, but affirmed as to his acquired psychiatric disorder.

[593]*593I. BACKGROUND

Appellant served in the United States Army from March 30, 1945, to September 21, 1945, and from January 3, 1946, to January 25, 1947. R. at 27-28. Appellant was hospitalized from July 14,1946, to July 17,1946, and again from August 6,1946, to August 8, 1946, for a diphtheria shot reaction. R. at 15, 17-20. An entry from appellant’s hospital records, dated August 6, 1946, states “[c]omplaining that working around gasoline causes sickness at [sic] stomach.” R. at 16. Appellant was prescribed Belladonna. Id. Belladonna is a medicinal extract (atropine) from the belladonna plant. WebsteR’s Medical Desk Dictionary 69 (1986). Atropine is normally used “in the form of its sulfate to inhibit the actions of acetylcholine in the parasympathetic nervous system (as by relieving spasms of smooth muscle or dilating the pupil of the eye)”. Id. at 56. This appears to be the only entry in appellant’s service medical records that can be construed as treatment for “nervousness.” At this time, appellant expressed his wishes to be transferred from his unit. R. at 16. Appellant also states that he received a typhoid shot in early October 1946, which also caused him to suffer a reaction and spend several days in the hospital. R. at 100. A record for this treatment is not found in the record on appeal.

According to appellant, after he was released from the hospital, he rejoined his company. However, unbeknownst to him, he was transferred to another company and did not realize this until he received his pay. Since he was not present in his new company, he was marked “absent without leave” and brought up on disciplinary charges. R. at 95-99. Appellant attributes his nervous condition to his reaction to the shots and being a victim of a hoax. R. at 84.

On November 4, 1946, appellant underwent a hearing in front of a Board of Officers. R. at 23-24. The Board recommended that appellant be discharged for “inaptness” and “lack of adaptability for the military service.” R. at 24. He was given an honorable discharge but was not allowed to reenlist in the future. Id. Prior to his discharge, on December 3, 1946, appellant underwent a physical examination at the Separation Center at Fort Bragg, North Carolina. He was later given a psychiatric diagnosis of “lack of adaptability.” R. at 21-22.

Appellant was discharged on January 25, 1947. R. at 27-28. Prior to discharge, appellant went home on “terminal leave” from the service in December 1946. R. at 90. It was during appellant’s fifty-day “terminal leave” that he claimed he first received treatment for prostatitis at the Veterans’ Administration (now Department of Veterans Affairs) (VA) Medical Center, in Asheville, North Carolina. Id. He was treated by Dr. Rich Conner. R. at 91. Appellant also claimed that he received treatment at Moores General Hospital in Swannanoa, North Carolina, for both his prostate and nervous condition. R. at 51-52, 55.

On September 25, 1947, and again on November 17, 1947, and March 10, 1948, appellant received treatment at a VA hospital and was diagnosed with “prostatitis, chronic”. R. at 30-32, 36-37. Prostatitis is defined as “inflammation of the prostate gland.” Webster’s Medical Desk Dictionary 580 (1986). On July 10, 1948, appellant was diagnosed as having neurasthenia. R. at 39. Neurasthenia is defined as “an emotional and psychic disorder that is characterized especially] by easy fatigability and often by lack of motivation, feelings of inadequacy, and psychosomatic symptoms.” Id. at 471. On September 29,1948, appellant was again treated for chronic prostatitis and a mitral murmur was found in his heart. R. at 40-41.

Appellant filed a claim with the VA on April 9, 1951, for service connection for nervousness. R. at 42. Appellant’s claim was denied by the rating board on May 3, 1951. Id. It appears from the record that appellant was again denied service connection for a psychiatric disorder in October 1953. Robert E. Case, BVA 90-17094, at 2 (May 30, 1990). Appellant’s claim was reevaluated on January 13, 1953, pursuant to [594]*594changed legislation, but he was again denied service connection. R. at 43.

Appellant did not attempt to reopen his claim again until September 1982. At that time, the rating board found that the new evidence submitted by appellant was “insufficient to establish a new factual basis to reconsider service connection for [a] nervous condition, not shown in service.” R. at 60. He was given a non-service-connected rating of seventy percent for a “personality disorder, inadequate personality with anxiety symptoms, with intractable depression and history of psychoneurosis” and a zero-percent rating for prostatitis. R. at 60-61. On October 31,1983, the BVA denied service connection for an acquired psychiatric disorder and for prostatitis. R. at 62-67.

On November 9, 1983, appellant filed a VA Form 1-9 alleging several errors in the Board’s decision. R. at 68. It does not appear from the record that appellant received a response from the VA until after an inquiry was made by Congressman James Clarke. On November 21, 1984, BVA Chairman Kenneth E. Eaton wrote to appellant responding to his allegations. R. at 72-73.

On June 28, 1989, appellant attempted to reopen his claim with a letter written by Dr. Bruce G. Armstrong, dated June 23, 1989. In the letter, Dr. Armstrong stated that he had reviewed some of appellant’s medical records and expressed the following opinion:

I think that [the September 1947 diagnosis of chronic prostatitis] was an incorrect diagnosis in that he had had no prior symptoms of prostatism or prostatitis. Certainly, his most likely diagnosis in this setting is a non-specific urethritis. Had he had chills, fever and back and perineal pain a diagnosis of an acute bacterial prostatitis could have been entertained. Certainly to make a diagnosis of chronic bacterial prostatitis on the initial evaluation was inappropriate.
Most cases of chronic bacterial prostati-tis are made after an acute urethritis or prostatitis has occurred. Symptoms persist for many months and examinations of prostatic secretions and post massage urines will show persistent inflammatory cells and sometimes post massage urine cultures of prostatic secretions will show the causative organism.

R. at 74. Thus, in order to have a diagnosis of chronic prostatitis, Dr. Armstrong was of the opinion that there must have been an initial diagnosis of either acute urethritis or acute prostatitis, thereby suggesting that appellant’s problem with pros-tatitis first occurred while he was in service.

On July 18, 1989, appellant was informed that Dr.

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Bluebook (online)
2 Vet. App. 592, 1992 U.S. Vet. App. LEXIS 182, 1992 WL 163181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-derwinski-cavc-1992.