Dunn v. West

11 Vet. App. 462, 1998 U.S. Vet. App. LEXIS 1149, 1998 WL 655466
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 23, 1998
DocketNo. 96-695
StatusPublished
Cited by73 cases

This text of 11 Vet. App. 462 (Dunn v. West) 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
Dunn v. West, 11 Vet. App. 462, 1998 U.S. Vet. App. LEXIS 1149, 1998 WL 655466 (Cal. 1998).

Opinion

HOLDAWAY, Judge:

The appellant, Lonnie C. Dunn, appeals a February 1996 decision of the Board of Veterans’ Appeals (BVA or Board) which declined to reopen a claim for post-traumatic stress disorder (PTSD), and denied a com-pensable rating for postoperative residuals of a right inguinal herniorrhaphy. For the following reasons, the Court will remand the matter relating to his PTSD claim to the BVA, and will affirm the BVA’s denial of an increased rating for hernia residuals.

[464]*464I. FACTS

The appellant had active service in the U.S. Army from August 1969 to March 1972, and served for one year in Vietnam. Service medical records mention complaints of right inguinal pain. In March 1980, Dr. Mian Shah performed a right herniorrhaphy, excision of a spermatic cord lipoma, and a right vasectomy. In April 1980, the regional office (RO) denied service connection for the right hernia. The appellant filed a Notice of Disagreement (NOD) in May 1980, and added a claim for a nervous disorder which he attributed to combat experiences in Vietnam. In an August 1980 letter, the appellant withdrew his claim for a nervous condition and asked VA to proceed with adjudication of his hernia claim.

In September 1980, the appellant’s representative requested that VA examine the appellant for PTSD. In October 1980, Dr. Riaz Uddin Riaz found “no psychiatric diagnosis, apart from mild anxiety,” and added that “it is difficult to connect his anxiety symptoms to his service in the Army.” In November 1980, the RO denied service connection for PTSD. In July 1981, the BVA granted service connection for the right inguinal hernia, but denied service connection for PTSD because (1) no diagnosis of PTSD existed, and (2) because the BVA concluded on its own that “mere service in a combat zone or hearing gunfire or viewing civilian casualties are not felt to be recognizable stressors of such severity that would evoke significant symptoms in most individuals.” On remand, the RO assigned a noncompensable rating to the hernia disability.

Private medical records indicate that the appellant was nervous, anxious, or depressed in June 1982, September 1982, June to August 1983, August 1986, and June to August 1988. In October 1986, the RO found that the appellant’s service-connected hernia residuals had not increased to a compensable degree.

In September 1988, the Beckley, West Virginia, VA medical center (VAMC) examined the appellant and noted that “[ajside from symptoms of psychological numbing and some fearfulness and startle reactions, he does not fit the classic profile of a PTSD patient. Additionally his experience does not support much in the way of combat.” The doctor diagnosed major depression and possible mild PTSD, and recommended that the appellant participate in counseling at the Princeton, West Virginia, Veterans Center.

In October 1988, the appellant filed a claim for a nervous condition. In an October 1988 statement in support of claim, he described ambushes and constant incoming fire while in Vietnam. Sometime later, private medical records were submitted which reported that in June 1982 the appellant was diagnosed with passive-aggressive personality disorder with possible paranoid traits, dysthymic disorder, and episodic alcohol abuse. The private records also noted that in July 1982, the appellant was tentatively diagnosed with alcohol abuse and schizoid personality, before being finally diagnosed with episodic alcohol dependence and avoidant personality disorder. In December 1988, the RO refused to reopen the appellant’s claim for a nervous disorder, finding that the record contained no evidence of a link between a nervous condition and military service. In July 1989, VA medical records mentioned treatment at the Princeton Veterans Center. In an unap-pealed October 1991 rating decision, the RO refused to reopen the appellant’s nervous condition claim because there was not sufficient evidence of a PTSD-inducing stressor, and there was not enough evidence that the appellant suffered from PTSD. An accompanying letter informed the appellant that the medical records from Beckley VAMC had been reviewed.

In June 1992, the RO received Social Security Administration (SSA) records and a copy of the SSA decision granting disability benefits based on findings that the appellant suffered from “severe chronic depression, a borderline level of intellectual functioning, and chronic alcohol abuse.” In June 1992, the appellant requested an increased rating for his hernia condition “to include secondary [service connection] for prostrate [sic] gland condition.” No mention was made of a vasectomy.

In July 1992, the RO received private medical records from Dr. Nasreen Dar prepared between August 1986 and May 1992 which [465]*465described periods of nervousness, depression, and frustration. Included was a February 1991 examination report diagnosing chronic, moderately severe, generalized anxiety disorder and moderately severe dysthymic disorder. In September 1992, the RO received a June' 1991 letter from Dr. Riaz who diagnosed chronic, moderately severe, major depression, and chronic, moderately severe, generalized anxiety disorder. In September and October 1992, the RO received additional records from the Beckley VAMC mentioning treatment at the Princeton Veterans Center in 1988 and 1989.

In October 1992, more SSA records were received, indicating that in June 1986 the appellant had a history of “anxiety depression” and was advised to seek private psychiatric or neurologic treatment; that in August 1989, the appellant was found to suffer from “dysthymic disorder, with anxiety and depression secondary to physical complaints;” that for a period of time the appellant received monthly treatment at the Princeton Veterans Center; and that in January 1988, Dr. William Prudich diagnosed depression and anxiety.

In October 1992, the RO denied an increased rating for the appellant’s hernia condition, and confirmed the denial of service connection for an acquired nervous disorder. The appellant filed an NOD in November 1992. In December 1992, an SOC was issued. The following month, VA received a November 1992 letter from the Princeton Veterans Center which described nervousness and depression, diagnosed alcoholism in remission, and reported the appellant’s descriptions of his experiences in Vietnam. The supporting diagnostic and treatment records which the letter appears to summarize were not submitted and do not appear in the Record on Appeal. A substantive appeal was filed in January 1993. In February 1993, the RO reviewed the letter from Princeton Veterans Center and confirmed denial of service connection. In March 1993, the appellant stated that he had nothing more to submit, and asked that his claim be forwarded to the BVA. In April 1995, the BVA remanded for the RO to develop the record and to provide an examination of the appellant’s right inguinal hernia condition. The PTSD claim was held in abeyance pending development.

In June 1995, Dr. Byrd White examined the appellant and noted a history of hernia repair and vasectomy, and found that the seven-inch scar was “freely movable and the sear itself is not tender.” He added that the “reason for the vasectomy was not clear.” Digital examination found some bilateral tenderness of the external inguinal ring, but the doctor observed that tenderness was not considered abnormal and concluded that there was “no evidence of hernia recurrence on the right and there is no evidence of a left inguinal hernia.” The doctor also noted that “the patient has some confused impression that Dr.

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Bluebook (online)
11 Vet. App. 462, 1998 U.S. Vet. App. LEXIS 1149, 1998 WL 655466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-west-cavc-1998.