Friscia v. Brown

7 Vet. App. 294, 1994 U.S. Vet. App. LEXIS 1033, 1994 WL 708317
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 21, 1994
DocketNo. 93-766
StatusPublished
Cited by41 cases

This text of 7 Vet. App. 294 (Friscia 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
Friscia v. Brown, 7 Vet. App. 294, 1994 U.S. Vet. App. LEXIS 1033, 1994 WL 708317 (Cal. 1994).

Opinion

KRAMER, Judge:

The appellant, David M. Friscia, appeals a May 26,1993, decision of the Board of Veterans’ Appeals (BVA or Board) which denied him entitlement to a total disability rating based on individual unemployability (TDIU). The BVA premised its denial on the finding that the appellant’s “[p]ost-traumatic stress disorder [ (PTSD) ], currently rated as 70% disabling, does not preclude [him] from securing or following a substantially gainful occupation.” Record (R.) at 7. The Court has jurisdiction under 38 U.S.C. § 7252(a). On August 5, 1994, the Secretary filed a motion to vacate the 1993 BVA decision and. to remand the matter. On October 4, 1994, — Vet.App. - [1994 WL 555370], in a single-judge memorandum decision, the Court granted the Secretary’s motion and remanded the matter for further proceedings. On October 18, 1994, the Secretary filed a motion for reconsideration or, in the alternative, for modification of the Court’s memorandum decision. On November 1, 1994, the appellant filed an opposition to the Secretary’s motion. By order dated November 8, 1994, - Vet.App. - [1994 WL 637094], the Court denied the Secretary’s motion and, sua sponte, modified the October 4, 1994, memorandum decision. On November 21, 1994, the appellant filed a motion for review of the Court’s memorandum decision. He argues that reversal of the BVA decision, rather than remand, is the appropriate remedy. The Court grants the appellant’s motion insofar as it seeks reconsideration of the Court’s memorandum decision and denies the motion insofar as it seeks reversal of the Board’s decision. The Court vacates its October 4, 1994, memorandum decision and issues this opinion in its stead.

I. Background

The BVA initially denied the appellant’s claim for a TDIU rating in a decision dated August 21, 1991. Upon appeal, this Court vacated the 1991 BVA decision and remanded the matter for the BVA to determine whether the appellant’s employment was “marginal,” and thus not “substantially gainful” employment under 38 C.F.R. § 4.16(a) (1993); to adequately state its reasons or bases for its findings and conclusions under 38 U.S.C. § 7104(d)(1); and to adequately address why the appellant was not entitled to the “benefit of the doubt” under 38 U.S.C. § 5107(b). Friscia v. Principi, 3 Vet.App. 563 (1992).

The following items pertaining to the appellant’s claim for a TDIU rating were in the evidence of record at the time of the 1991 BVA decision. Dr. O.R. Elofson, appellant’s psychologist, in a December 1989 letter, opined that the appellant “is so severely impaired as to be unemployable.” R. at 127. A January 1990 letter of Dr. V. Johnette Phillips, a psychologist and partner of Dr. Elof-son, stated that “in spite of [the appellant’s] efforts to obtain employment, he has not been able to maintain a position for any small period of time.” R. at 130. A February 1990 letter from Edwin C. Benson, a vocational rehabilitation counselor with the State of Washington, Department of Social and Health Services, stated that the appellant’s PTSD “has presently made him unable to accomplish his field of experience, that being sales and planning.” R. at 132. An undated letter from the appellant related that he had nineteen jobs in the last eighteen years, and that “[m]y inability to stay employed has become a major issue in my life.” R. at 136, 190. A July 1990 hearing of the State of Washington, Office of Administrative Hearings, pertaining to the appellant’s receipt of unemployment benefits from his former employer for whom the appellant worked as a salesman from April 1989 to December 1989, resulted in the finding that “[t]here is no question but that [the appellant] was an inadequate employee, and the company was justified in discharging him.” R. at 183. An August 1990 statement of Dr. Elofson related that the appellant’s “level of disability is ex[296]*296tremely severe and prohibits not only vocational functioning but virtually all social functioning.” R. at 186. In December 1990 the appellant and Dr. Elofson provided sworn testimony at a VA regional office (RO) hearing. R. at 204-27. The appellant testified that he ended his aviation career in 1980 because of “continuing anxiety,” R. at 213, 205, 219, and that he was rejected by 150 companies while looking for a job between November 1989 and January 1990, R. at 206-07. When asked the question, “So you could get on the phone, for example here today and you could talk to everybody in the world,” the appellant answered “yes,” but added, “[ajnything more than superficial contact, I don’t do well.” R. at 209. In addition, the appellant testified that he was then working 24 hours per week as a telemarketer making $6.25 per hour. R. at 218-19. Dr. Elofson testified that the appellant’s current job performance was not satisfactory, and that the appellant copes with his PTSD by being a workaholic, citing the example that “when he recently switched residences ... he had within a week’s time completely relandscaped the yard, painted the house and done a fair amount of structural work.” R. at 220, 223-24.

The .following items regarding the appellant’s claim were added to the record since the 1991 BVA decision. A June 1991 psy-ehoeducational evaluation conducted by Dr. Elofson and Lorraine M. Dreiblatt, M.Ed., an education specialist, found that the appellant’s “deficits substantially interfere with his ability to perform optimally therefore, qualifying him as handicapped.” R. at 306. An August 1991 neuropsychological evaluation conducted by Dr. Judith Skenazy, a neuro-psychologist, recommended that the appellant work in a quiet environment, and that, “[bjased on his report of excessive fatigue following regular work days, ... [he] would perform better in a part-time position.” R. at 318. During a November 1991 VA Special Psychiatric Examination for PTSD, the appellant indicated that his telemarketing job ended in September 1991, and that since September 1991 he was learning, in a vocational rehabilitation training program for the handicapped which met five days a week from 8:30 a.m. to 4:00 p.m., to become a computer programmer. R. at 324-25. The examining VA physician, Dr. John M. Horton, concluded: “At the end of the program [the appellant] should have the job skills to be employable as an entry-level programmer.” R. at 326. In September 1992 the appellant and Dr. Elofson again testified at a VARO hearing. R. at 485-507. The appellant testified that although he completed the computer training in June 1992, and had applied for approximately thirty positions, he was not offered employment despite the program’s 97.6% placement rate. R. at 495-97. Dr. Elofson stated that the appellant lost his telemarketing job in September 1991 because of his disability, and added: “He graduated from the Resource Center for the Handicap getting 38 denials ..., he graduated top in his class ... and he is the only one not employed.” R. at 498. Dr. Elofson also stated that the appellant continues to be unemployable. R. at 501. On the appellant’s VA Application for Increased Compensation Based on Unemployability, dated October 1992, he indicated that he had last worked full time in October 1989, that he last worked part time in September 1991, and that he had become too disabled to work in September 1990. R. at 535-36.

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Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 294, 1994 U.S. Vet. App. LEXIS 1033, 1994 WL 708317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friscia-v-brown-cavc-1994.