Cousino v. Derwinski

1 Vet. App. 536, 1991 U.S. Vet. App. LEXIS 113, 1991 WL 224405
CourtUnited States Court of Appeals for Veterans Claims
DecidedOctober 31, 1991
DocketNo. 90-995
StatusPublished
Cited by21 cases

This text of 1 Vet. App. 536 (Cousino 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
Cousino v. Derwinski, 1 Vet. App. 536, 1991 U.S. Vet. App. LEXIS 113, 1991 WL 224405 (Cal. 1991).

Opinion

KRAMER, Associate Judge:

On June 1, 1990, the Board of Veterans’ Appeals (BVA) denied appellant’s claim for an increased rating for his 30% service-connected post-traumatic stress disorder (PTSD). Because the BVA failed adequately to consider and analyze the evidence presented and to explain its refusal to upgrade appellant’s rating, its decision is vacated and the case remanded for proceedings consistent with this opinion.

I.

Factual Background

Appellant served on active duty with the United States Army as a medical technician [537]*537(medic) from 1947 to 1953. R. at 50. During part of this period, he was stationed in Korea at the height of the Korean conflict and was exposed to several traumatic combat experiences. R. at 8, 11, 50. During one such experience, he had a mental breakdown and was evacuated. R. at 11.

Subsequent to his honorable discharge in 1953, appellant was hospitalized several times because of his mental condition, including suicide attempts. R. at 8, 22, 63. In 1963, the Veterans’ Administration (now Department of Veterans Affairs) (VA) adjudicated his nervous disorder as service connected. R. at 50.

From September 14, 1988, to October 14, 1988, he was hospitalized by the VA for PTSD, agitated depression, and suicidal ideation. R. at 8-11. On September 23, 1988, the VA apparently reopened appellant’s past claim for nervous disorder and awarded him a 10% service-connected disability rating for anxiety reaction with PTSD. R. at 11, 12.

In November 1988, appellant was examined by VA psychiatrist Dr. Jose Amato, who diagnosed appellant as having chronic PTSD along with recurrent major depression. Dr. Amato gave a “guarded prognosis” for appellant and indicated that his condition could be expected to last twelve months or more. R. at 16. This diagnosis was confirmed on February 13, 1989, by VA Dr. Dennis Grant who treated appellant for long-term sleep disorder with nightmares from his war experiences. R. at 14-15. However, in evaluating appellant, Dr. Grant also noted:

[T]he ... patient [was] ... alert, cooperative, and in good contact with reali-ty_ His speech was ... coherent, [his] mood was labile_ He was somewhat anxious ... [with no] evidence of suicidal thoughts.... [He showed] no evidence of psychotic behavior.... His memory[,].... judgment and reasoning appeared intact. He did show depressive affect, however.
[An increased dosage of antidepressant during hospitalization] resulted in a dramatic improvement in his depressive affect. This improvement was maintained thereafter.... He demonstrated a very high and positive motivation and productive involvement in the [PTSD] program. He improved in social isolation.... However, there was a tendency toward developing recurrent depressive affect. ...
His employability is somewhat limited in a competitive labor market at the present time_ Employability could be improved if vocational assistance and retraining could be done on an outpatient basis.

R. at 14, 15.

On November 30, 1988, appellant filed a disability claim for an increase in his PTSD rating which was denied by the VA Regional Office (RO) on March 10, 1989. R. at 17-18, 20-21.

Shortly after this denial, on March 11, 1989, appellant underwent another VA examination. This time he was treated by Dr. Marcelle Leet who reconfirmed the diagnosis of PTSD and observed:

The [appellant] ... feels estranged_ tends to avoid crowds and is distrustful.... [He] tends to avoid activities and events which remind him of his expe-riences_ [He] is frequently hypervi-gilant, startles easily, and suffers from chronic sleep disturbance.
[Appellant’s] thought processing is logical and goal directed. There is no evidence of psychotic thought content.... [or] suicidal ... ideation. He appears to have adequate recent and remote memory as well as concentrating ability....

R. at 22, 23. In profiling appellant’s history, Dr. Leet reported:

The [appellant] attended school through the eighth grade and received a GED. He also has had three years of college with specialized training in surgical technology. [Appellant] has worked as a surgical technologist. He last worked in 1978 in this field. He is unable to obtain employment in this area owing to [538]*538his felony conviction. As a result he has worked at a number of occupations including an administrative clerk, truck driver, farm laborer, etc. ... [Appellant] states that, although he is physically capable of working, he has ... frequently ... walked off jobs due to irritability and fear.

Id. (emphasis added). Dr. Leet also recorded:

[Appellant] thinks that [his mental and emotional condition] has had a number of ruinous affects [sic] on his life, including the fact that he spent 14 years in prison for forgery. He states that because of his constant stress and anxiety he basically ran away and could not support himself, thus being forced to forge a check. [Appellant] has been hospitalized on a number of occasions owing to fear and suicide attempts....
R. at 22.

On May 18, 1989, the RO, in apparent response to an October 31, 1988, claim filed by appellant, issued a decision in which it raised appellant’s PTSD rating to 30%. R. at 31-34, 38. In addressing appellant’s em-ployability, it stated:

[Appellant’s] employability was felt to be somewhat limited in a competitive labor market because of both his medical and psychological difficulties. It was felt that employability could be improved if vocational assistance and retraining could be done on an outpatient basis.

Id. at 33.

Dissatisfied with this rating, appellant filed a Notice of Disagreement (NOD) with the RO on June 27, 1989. R. at 39. In support of his claim, appellant submitted the results of an independent comprehensive psychological examination performed June 29, 1989, by Dr. George DeLong, private psychologist. After conducting a series of diagnostic tests on appellant, Dr. DeLong stated that appellant’s manifestations included exaggerated startle response, periods of pressured and rapid speech with elevated heart rate and breathing when attempting to discuss combat experiences, hypervigilance, scanning, flashbacks, and nightmares, and that he suffered from severe chronic PTSD. R. at 43.

In one of his reports dated July 5, 1989, he classified appellant’s impairment as follows: mild impairment in personal habits; moderate impairment in the ability to socialize with friends and neighbors, attend meetings, work around the house, perform simple tasks, and understand, carry out, and remember instructions; moderately severe impairment in the ability to relate to other people, maintain outside interests, respond appropriately to supervision and coworkers, and perform complex and repetitive tasks; and severe impairment in the ability to respond to customary work pressures and perform varied tasks in a routine work setting. R. at 45-46. With respect to appellant’s employability, Dr. Delong further opined that he did not believe that appellant was “capable of completing ... a [vocational assistance and retraining] program and entering into competitive employment ... [as h]is symptoms ... [are] quite severe ...

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

Related

In re the Fee Agreement of Leventhal
9 Vet. App. 387 (Veterans Claims, 1996)
Kelly v. Brown
7 Vet. App. 471 (Veterans Claims, 1995)
Genous v. Brown
5 Vet. App. 422 (Veterans Claims, 1993)
Romero v. Brown
6 Vet. App. 311 (Veterans Claims, 1993)
Stozek v. Brown
4 Vet. App. 453 (Veterans Claims, 1993)
Oredson v. Brown
4 Vet. App. 450 (Veterans Claims, 1993)
Ascherl v. Brown
4 Vet. App. 371 (Veterans Claims, 1993)
Hicks v. Principi
4 Vet. App. 2 (Veterans Claims, 1993)
Garcia v. Principi
3 Vet. App. 382 (Veterans Claims, 1992)
Shaw v. Principi
3 Vet. App. 365 (Veterans Claims, 1992)
Hogue v. Derwinski
3 Vet. App. 280 (Veterans Claims, 1992)
Shoemaker v. Derwinski
3 Vet. App. 248 (Veterans Claims, 1992)
Galvagno v. Derwinski
3 Vet. App. 118 (Veterans Claims, 1992)
Curl v. Derwinski
3 Vet. App. 98 (Veterans Claims, 1992)
Brown v. Derwinski
3 Vet. App. 75 (Veterans Claims, 1992)
Dalton v. Derwinski
2 Vet. App. 634 (Veterans Claims, 1992)
Mattson v. Derwinski
2 Vet. App. 643 (Veterans Claims, 1992)
Clouatre v. Derwinski
2 Vet. App. 590 (Veterans Claims, 1992)
Ewing v. Derwinski
2 Vet. App. 459 (Veterans Claims, 1992)
Smith v. Derwinski
2 Vet. App. 461 (Veterans Claims, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
1 Vet. App. 536, 1991 U.S. Vet. App. LEXIS 113, 1991 WL 224405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cousino-v-derwinski-cavc-1991.