Elkins v. West

12 Vet. App. 209, 1999 U.S. Vet. App. LEXIS 300, 1999 WL 79516
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 17, 1999
DocketNo. 97-1534
StatusPublished
Cited by62 cases

This text of 12 Vet. App. 209 (Elkins 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
Elkins v. West, 12 Vet. App. 209, 1999 U.S. Vet. App. LEXIS 300, 1999 WL 79516 (Cal. 1999).

Opinions

STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a concurring opinion.

STEINBERG, Judge:

The appellant, veteran Joe Elkins, appeals through counsel a May 6, 1997, decision of the Board of Veterans’ Appeals (Board or BVA) that determined that new and material evidence had not been presented to reopen a previously and finally disallowed claim for Department of Veterans Affairs (VA) service connection for an acquired psychiatric disorder. Record (R.) at 2. The appellant has filed a brief and a reply brief; the Secretary has filed a brief. On October 16, 1998, the Secretary filed a notice of supplemental authority as to Hodge v. West, 155 F.3d 1356 (Fed.Cir.1998). See U.S. Vet.App. R. 28(g) (“[wjhen pertinent and significant authorities come to the attention of a party after the party’s brief has been filed ... party shall promptly advise the Clerk, by letter, with a copy to all other parties, setting forth citations”); Penny v. Brown, 7 Vet.App. 348, 351 (1995). This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a).

The Court has convened en banc in order to consider the proper application of Hodge, supra, a matter of exceptional importance, and to maintain uniformity in our decisions. See U.S. Vet.App. R. 35(c); Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (“[A] panel ... may not render a decision which conflicts materially with [an] earlier panel or en banc opinion. It is in this way we assure consistency of our decisions.”).

For the reasons that follow, the Court will vacate the Board decision and remand the matter for further proceedings consistent with this opinion.

I. Relevant Facts

This case was previously before the Court in 1993 when the Court affirmed an October 16, 1991, Board decision that new and material evidence had not been presented to reopen as to the same claim at issue in the instant appeal. Elkins v. Brown, 5 Vet.App. 474 (1993). But see id. at 478-83 (Steinberg, J., dissenting). The pertinent evidence as of 1991 was summarized in the Court’s 1993 opinion. Id. at 476-77. The question whether there was new and material evidence presented as of that date turned on two letters from the veteran’s private physician, Dr. Estes, dated August 1990 and January 1991. The letters stated, respectively:

Joe Elkins is a patient under my care and [is] also being treated at [a] VA Hospital.] He has had a problem with psychoses for a long period of time and in my medical opinion it is connected with conditions originating while in the service.

Id. at 477 (1990 letter); see also R. at 122.

Joe Elkins is now a patient under my care [sic; no punctuation here] in Janfuary] [19]64 while in the service he was treated for psychosis and depression. He experience [sic] hallucinations at the time and was treated for same. He was [211]*211diagnosed as hysteria [sic] and treated with Thorazine and Nembutal.

Elkins, 5 Vet.App. at 477 (1991 letter); see also R. at 140. In July 1992, while the case was on appeal to the Court, VA received a third letter from Dr. Estes, which stated in pertinent part:

This is to state that I first saw the above-named patient while in private practice in Smithville, TN 2/2/87 and subsequently on several occasions until my retirement from private practice.... I treated Mr. Elkins primarily for a psychological problem previously diagnosed as hysteria with depression and a later diagnosis of schizophrenia, chronic undifferentiated type. I obtained the history that his condition began or was aggravated by his tenure in service. History also shows that he was under treatment in Murfreesboro, Tennessee. My treatment consisted of supportive care and continuation of psychotropic drugs. Throughout this time he exhibited marked depression as well as evidencing psychotic behavior including thought disassociation and social dysfunction.
I have not previously been contacted by [VA] or other parties for this information even though I have remained at the same home address and address listed in the Physicians’ Registry for the last twenty years....
A review of the court transcripts on this date show [sic], in my medical opinion, a relationship and correlation of this discharge diagnosis of hysteria with his later diagnosis of schizophrenia. This is in keeping with his treatment while in the service and my findings during the time I treated Mr. Elkins.

R. at 185. See also Elkins, 5 Vet.App. at 477. The veteran’s attorney stated at the veteran’s January 1997 hearing before the Board that Dr. Estes’ July 1992 statement, quoted above, was based on Dr. Estes’ having been sent the record on appeal from the prior appeal to this Court. R. at 307.

In its 1993 opinion, the Court considered the above-quoted 1990 and 1991 letters from Dr. Estes and concluded:

The Court agrees with the Board’s conclusion that Dr. Estes’ letters are not “material.” First, neither letter contains a current diagnosis of a psychiatric disorder. Second, the evidence indicates that appellant was first seen by Dr. Estes over 20 years after separation from service. The January 3,1991, letter is simply appellant’s recitation of his history, and does not establish, in any way, a relationship between any claimed disability in service and any currently claimed disorder. The August 2, 1990, letter which states that appellant “has had a problem with psychoses” and “it is connected with conditions originating in service,” also recites history provided by appellant. Although Dr. Estes examined appellant on many occasions, there is no indication that he formed this opinion on a basis separate from appellant’s recitation of his medical and service background. Further, Dr. Estes conspicuously does not discuss the well-documented pre-service problems of the appellant, such as his lifelong emotional instability, in rendering his opinion. Neither Dr. Estes’ letters, nor his medical records, indicate that he reviewed appellant’s service medical records or other relevant documents, which would have enabled Dr. Estes to form an opinion as to service connection based on independent grounds....
It is important to note that the Court does not doubt the honesty of Dr. Estes. The presumption of credibility of the evidence does not come into play. See Justus v. Principi, 3 Vet.App. 510, 513 (1992). Rather, the issue here is the basis upon which Dr. Estes’ statements were made, i.e., appellant’s own account of his medical history and service background, recitations which have already been rejected by the [VA regional office (RO) ] and BVA. On the facts presented, we hold that Dr. Estes’ statements are not “material” evidence. The Court concludes, therefore, that the BVA was correct in finding that no new and material evidence had been presented.

Elkins, 5 Vet.App. at 478.

In the decision here on appeal, the BVA stated (quoting Evans (Samuel) v. Brown, 9

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Bluebook (online)
12 Vet. App. 209, 1999 U.S. Vet. App. LEXIS 300, 1999 WL 79516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elkins-v-west-cavc-1999.