Degmetich v. Brown

8 Vet. App. 208, 1995 U.S. Vet. App. LEXIS 691, 1995 WL 563944
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 22, 1995
DocketNo. 94-444
StatusPublished
Cited by34 cases

This text of 8 Vet. App. 208 (Degmetich 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
Degmetich v. Brown, 8 Vet. App. 208, 1995 U.S. Vet. App. LEXIS 691, 1995 WL 563944 (Cal. 1995).

Opinion

MANKIN, Judge:

The appellant, Charles L. Degmetich, appeals the April 6, 1994, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to service connection for a psychiatric disorder and found no clear and unmistakable error (CUE) in an October 1967 rating decision that denied service connection for a nervous disorder. The Secretary filed a brief, and the appellant filed a brief and a reply brief.' In his briefs and at oral argument, the appellant limited his appeal to the issue of CUE in the October 1967 rating decision. The Court deems the appellant to have abandoned his appeal with respect to the remainder of the issues addressed by the BVA below. Bucklinger v. Brown, 5 Vet.App. 435 (1993). The Court has jurisdiction pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court affirms the April 1994 decision of the BVA.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Army from July 15 to December 21,1956. Record (R.) at 15. After being discharged, the appellant served on active duty in the U.S. Air Force from December 31, 1956, to April 4, 1960. R. at 15, 82, 95. His service medical records are negative for any treatment or formal diagnosis of any mental disorder. In December 1959, the appellant was treated for difficulty sleeping. The treating physician noted that the appellant was going through a divorce. R. at 72. The appellant was hospitalized in December 1959 for an appendectomy. R. at 98. The following month, an Air Force doctor wrote the appellant’s mother and said:

We feel that [the appellant] would probably benefit from long-term psychiatric care but since we have no psychiatrist assigned to the staff of this hospital the carrying out of such a treatment program presents almost insuperable difficulties. Due to sundry troubles that [the appellant] has been having with his military supervisor it is entirely possible that he will be separated [210]*210from the Air Force in the fairly near future, in which case he could get this care from a Veterans Administration Hospital.

Id. In April 1960, the appellant was administratively discharged. R. at 15, 77.

The appellant received inpatient treatment at Agnews State Hospital, in California, from January to March 1961. R. at 87, 91-92. The admitting doctor’s diagnostic impression was “schizophrenic reaction, chronic undifferentiated.” R. at 91. In February 1961, the appellant was diagnosed with “22.4 Schizo. React., Acute Undifferentiated.” Id. The same month, the appellant filed a claim requesting service connection for nerves. R. at 83-85. In an April 1961 decision, the regional office (RO) issued a deferred rating decision for service connection for schizophrenic reaction pending the receipt of additional service medical records. R. at 95. A VA examination was ordered but the appellant could not be located and no further action was taken on his claim. R. at 128.

In April 1967, the appellant was admitted to the El Camino Hospital, in California, following an attempted suicide. R. at 100-04. The appellant was discharged from El Camino Hospital with a diagnosis of “depressive reaction [and a] probable psychosis” and transferred to the Agnews State Hospital on April 22, 1967. R. at 104, 159. On May 9, 1967, the appellant was discharged from Ag-news State Hospital with a diagnosis of “schizophrenic reaction, schizo-affective” and transferred to a VA medical center to participate in a study on depression. R. at 106, 159. The treating physician at the VA medical center reported that his diagnostic impressions were:

Personality trait disturbance, emotionally unstable personality with psychoneurotic depressive reaction, as evidenced by difficulty in establishing firm, long term interpersonal relationships and emotional lability, resulting in drastic changes of plans and in rash or impulsive attempted suicide during the times of depressed affect. Question of schizophrenic reaction, schizo-affective type, must be entertained though at present time patient does not seem to be sufficiently thought disordered to justify this diagnosis.

R. at 110.

During the hospitalization in the VA medical center, the appellant reopened his claim for service connection for a nervous disorder. R. at 128. In August 1967, the appellant was discharged with a diagnosis of “personality trait disturbance, emotionally unstable personality with psychoneurotic depressive reaction.” R. at 124. The appellant’s claim was denied in an October 1967 decision. The RO decision said:

The only evidence in service indicates emotional disturbance and no indication of acquired neuropsychiatric disease. When the veteran was hospitalized in January 1961, approximately 9 months from his discharge from service, the diagnosis made was schizophrenic reaction acute undifferentiated type. This diagnosis according to the VA examiner was not definitely supported by hospital notes and there is no evidence to show the development of a chronic undifferentiated type of schizophrenic reaction. Since the chronic disease is required for presumptive service connection, the acute condition with no present findings of psychosis cannot be rated.

R. at 128-29. The decision also said that the appellant had a “constitutional or developmental abnormality — not a disability under the law[.] PERSONALITY TRAIT DISTURBANCE, EMOTIONAL UNSTABLE PERSONALITY[.]” R. at 129. This decision was not appealed.

The appellant’s February 1970, February 1974, January 1984, January 1987, and May 1990 attempts to reopen his claim for service connection for a nervous condition were denied. R. at 139, 144, 155, 193-94, 200. The June 1990 RO decision that denied the appellant’s May 1990 attempt to reopen was appealed. In December 1991, the Board held that the claim should have been reopened and remanded the case. Charles L. Degme-tich, BVA 91-16 054, at 4 (Dec. 3,1991). The Board directed the RO to obtain copies of all available medical records, conduct a VA psychiatric examination, and consider the issue of CUE in the October 1967 rating decision.

[211]*211On remand, the RO issued a July 1993 confirmed rating decision. R. at 402-03. The decision said that the evidence did not establish a chronic psychosis during service or the presumptive period that followed and the appellant’s personalty disorder was not a compensable disability. The RO also found no CUE in the October 1967 RO decision. In an April 1994 decision, the Board found no CUE in the October 1967 decision and denied entitlement to service connection for an acquired psychiatric condition based on a reopened claim. Charles L. Degmetich, BVA 91-16 054 at 4 (April 6, 1994).

II. ANALYSIS

In the appellant’s brief, he argued that the Board erred when it found that the October 1967 RO decision did not contain CUE. At oral argument, the appellant amended his argument and argued that the Board erred in its analysis of the CUE claim. The Secretary, in his brief and at oral argument, argued that the Board properly concluded that the October 1967 decision did not contain CUE.

The Board decision said:

[T]he RO had a tenable basis for denying entitlement to service connection for a psychiatric disorder in October 1967.

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Bluebook (online)
8 Vet. App. 208, 1995 U.S. Vet. App. LEXIS 691, 1995 WL 563944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degmetich-v-brown-cavc-1995.