Cox v. Brown

6 Vet. App. 459, 1994 U.S. Vet. App. LEXIS 477, 1994 WL 226653
CourtUnited States Court of Appeals for Veterans Claims
DecidedMay 26, 1994
DocketNo. 92-1335
StatusPublished
Cited by7 cases

This text of 6 Vet. App. 459 (Cox 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
Cox v. Brown, 6 Vet. App. 459, 1994 U.S. Vet. App. LEXIS 477, 1994 WL 226653 (Cal. 1994).

Opinion

IVERS, Judge:

Alvin J.. Cox appeals a July 20, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to an increased evaluation for service-connected schizophrenia, currently rated 30% disabling. Alvin J. Cox, BVA 92-17177 (July 20, 1992). We have jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, we affirm the July 1992 BVA decision denying the claim for an increased disability rating but remand the matter because the BVA did not consider whether appellant was entitled to a total disability rating based on individual unemployability (TDIU rating).

I. FACTUAL BACKGROUND

Appellant served on active duty in the United States Army from August 23,1958, to August 1, 1959. R. at 16. While in service, he was diagnosed with schizophrenic reaction, paranoid type. R. at 38. On September 18,1959, a VA regional office (RO) granted service connection for schizophrenic reaction, mixed type. R. at 107. On October 5, 1959, his condition was rated 10% disabling. R. at 116-17. Following a scheduled VA examination, the RO increased the rating for appellant’s schizophrenic reaction to 30% disabling. R. at 119. On March 5, 1970, upon review of a Social Service survey that reported that appellant had been operating a mobile home park and selling and repairing mobile homes, the RO reduced the rating for schizophrenia to 0% disabling. R. at 122. In December 1975, appellant sought an increased disability rating for his condition. R. at 123-26. The RO requested that appellant provide further evidence in support of his claim. R. at 127. The record on appeal (ROA), however, contains no further correspondence from appellant concerning this request for an increase.

On July 24, 1989, appellant again sought an increased disability rating for his condition. R. at 128. On March 22,1990, the RO granted a 30% disability rating for schizophrenic reaction, undifferentiated type, competent. R. at 136-37. Appellant disagreed with the assigned rating, and he filed a Notice of Disagreement (NOD) seeking a 100% rating in June 1990. R. at 138. On November 23,1990, the RO notified appellant that it had denied the claim for an increased rating. R. at 152. Appellant appeared at a personal hearing before the RO on April 18,1991. R. at 159-64. He also underwent a VA psychiatric evaluation in June 1991. R. at 170-75. On July 16, 1991, an RO hearing officer continued the denial of the claim for an increased rating. R. at 176. On October 15, 1991, following the receipt and consideration of additional medical records, the RO continued its denial of an increased rating. R. at 198. On July 20, 1992, the Board denied an increased rating in appellant’s service-connected schizophrenia (then rated 30% disabling). Cox, BVA 92-17177, at 8.

II. ANALYSIS

A. Claim for Increase

Appellant’s claim for an increased rating is a new claim, and the Court reviews the Board’s findings of fact regarding new claims under a “clearly erroneous” standard of review. 38 U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990); see also Butts v. Brown, 5 Vet.App. 532, 535 (1993) (en banc) (claim for increase is new claim). Under the “clearly erroneous” standard of review, “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, [461]*461[the Court] cannot overturn them.” Gilbert, supra. The Board must base its decisions on “all evidence and material of record,” 38 U.S.C. § 7104(a), and must provide a “written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record,” 38 U.S.C. § 7104(d)(1). See Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) (en banc), vacating in part on other grounds, 2 Vet.App. 103 (1992); Gilbert, 1 Vet.App. at 56-57. Pursuant to these statutory requirements, the Board must “account for the evidence which it finds to be persuasive or unpersuasive,” and provide reasons or bases for rejecting evidence submitted by or on behalf of the claimant. Gilbert, 1 Vet.App. at 57.

The VA has recognized that the field of mental disorders is a complicated field. See 38 C.F.R. § 4.125 (1993). Under 38 C.F.R. § 4.130 (1993),

The severity of disability is based upon actual symptomatology, as it affects social and industrial adaptability_ The examiner’s classification of the disease as “mild,” “moderate,” or “severe” is not determinative of the degree of disability, but the report and the analysis of the sympto-matology and the full consideration of the whole history by the rating agency will be....

Under the diagnostic code (DC) for schizophrenia, undifferentiated type, a disorder in full remission warrants a noncompensable evaluation (0% disabling), a disorder producing “[m]ild impairment of social and industrial adaptability” warrants a 10% evaluation, a disorder producing “[d]efinite impairment of social and industrial adaptability” warrants a 30% evaluation, and a disorder producing “[considerable impairment of social and industrial adaptability” warrants a 50% evaluation. 38 C.F.R. § 4.132, DC 9204 (1993). As the Court held in Hood v. Brown, 4 Vet.App. 301, 303 (1993), the very term “definite” is qualitative whereas the other terms in the rating schedule for psychotic disorders (“total,” “severe,” “considerable,” “mild,” and “full remission”) are quantitative. These differing terms, however, can be reconciled when the Board construes the term “‘definite’ in section 4.132 in a way that quantifies the degree of impairment and not the mere fact that impairment exists.” Id. at 303-04. The Board may thus fulfill its obligation under 38 U.S.C. § 7104(d) to provide reasons or bases for its decision. Hood, 4 Vet.App. at 302; Gilbert, 1 Vet.App. at 57.

In this case, the Board’s decision and its reasons or bases are adequate. In Hood, the Board had “simply concluded that ‘the current rating, which contemplates definite social and industrial impairment, is seen as adequately encompassing the symptomatolo-gy displayed.’ ” Id. at 302 (citation omitted). Here, the Board reviewed the entire history of appellant’s condition and all the evidence in support of or against his claim. In particular, the Board relied on the June 1991 VA psychiatric evaluation, which stated:

Throughout this evaluation [veteran] is oriented to time, place, and person. He shows no evidence of hallucination, delusion, or thought disorder but makes frequent references to ideas of reference and some paranoid ideation about his military experiences....

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Bluebook (online)
6 Vet. App. 459, 1994 U.S. Vet. App. LEXIS 477, 1994 WL 226653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-brown-cavc-1994.