Fugo v. Brown

6 Vet. App. 40, 1993 U.S. Vet. App. LEXIS 700, 1993 WL 467847
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 16, 1993
DocketNo. 93-407
StatusPublished
Cited by199 cases

This text of 6 Vet. App. 40 (Fugo 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
Fugo v. Brown, 6 Vet. App. 40, 1993 U.S. Vet. App. LEXIS 700, 1993 WL 467847 (Cal. 1993).

Opinion

HOLDAWAY, Judge:

Appellant, Joseph F. Fugo, is appealing a February 18, 1993, decision of the Board of Veterans’ Appeals (BVA or Board). In that decision, appellant received a 100% rating for post-traumatic stress disorder (PTSD) retroactive to March 6,1990, the date of his claim. Accordingly, the only question before this Court is whether there was clear and unmistakable error (CUE) in not assigning an earlier effective date. See 38 C.F.R. § 3.105(a) (1992). Only the facts as to the attempt to raise CUE will be addressed. In the instant appeal, appellant alleged that he was entitled to an increased rating retroactive to 1989 or possibly 1987. The Court finds at the outset that under no possible reading of the facts has appellant reasonably raised an issue of CUE as to the 1987 adjudication. He made no argument nor pointed to any evidence that would call into question any aspect of the 1987 adjudication. The Court, therefore, will only discuss the CUE claim as it relates to the 1989 adjudication. The facts of that adjudication follow.

I. FACTS

On June 7, 1989, the Board issued a decision finding that appellant did not meet the schedular criteria for a rating in excess of 70% for PTSD. In rendering its decision, the Board had the following evidence before it:

(1) Veterans’ Administration (now Department of Veterans Affairs) (VA) outpatient treatment records from April to June 1987 which revealed that appellant was seen for PTSD.

(2) A letter from appellant’s former employer dated July 1987, stating that appellant had been hired as a telephone solicitor, but had to be terminated after three days because of inappropriate behavior while conducting business with clients. It was reported that appellant’s speech rambled and that he became incoherent at times while talking to prospects on the phone.

(3) Records from an August 1987 VA examination where appellant complained of poor memory, inability to handle stress, and violent outbursts. Appellant stated he had a hard time attending school because of difficulty in concentrating, depression, and anxiety. He reported he was paranoid, insecure, unable to sleep, and had combat nightmares. Diagnosis at that time was PTSD.

[42]*42(4) Appellant’s testimony at a regional office in March 1988. Appellant reported that he stayed at home because he did not feel safe outside of his house. He stated that he had had 50 or 60 jobs since he left the service, and none of them had lasted.

(5) A VA psychologist’s letters dated April 1988, August 1988, and March 1989, in which he reported that he had been treating appellant since May 1984 for PTSD, and opined that appellant was unemployable. He stated that appellant had been unsuccessful in attending trade schools and college. The psychologist reported that appellant had had many jobs, which usually lasted only a few days to a few weeks because of psychiatric symptoms including combat nightmares, insomnia, problems with authority, a tendency to isolate himself from others, problems remembering and concentrating, startle reaction, depression, and angry outbursts.

(6) A letter dated May 1988 from an official of the university that appellant attended. The letter advised appellant that he was dismissed from the university because of unsatisfactory academic progress.

(7) Records from a May 1988 VA psychiatric examination. Appellant complained of combat nightmares, restlessness, irritability, depression, poor memory, difficulty concentrating, insomnia, startle reaction, flashbacks, and intrusive thoughts. His hands were shaking and his palms were moist. He was restless and his speech was pressured. Psychological testing showed a decline in intellectual functioning and inability on a cognitive and emotional basis to maintain employment or socially interact in a normal way. The diagnosis at that time was PTSD.

(8) Letters from a VA physician dated May and August 1988 reporting that the physician had been treating appellant for PTSD since 1984. The physician indicated that appellant had been unable to hold a job because of combat nightmares, loss of sleep, problems with authority, tendencies to isolate himself from others, problems remembering and concentrating, problems with loud noises and heightened startle reactions, depression, and angry outbursts. The physician opined that appellant was unemployable.

(9) Personal hearing testimony dated October 1988. Appellant described his symptoms and the difficulty he had in maintaining a job.

(10) VA outpatient treatment records from May 1988 to March 1989, revealing that appellant continued to complain of nightmares, tension, insomnia, memory problems, startle reaction, and difficulty with interpersonal relationships. He reported that he had a painting job for six days in January, but he was terminated because he was late for work and was losing his temper.

(11) An April 1989 statement from appellant’s parents reporting that he was very nervous and had a lot of angry outbursts. They reported that appellant had a hard time concentrating and remembering things and that he did not go to family gatherings. They stated that appellant had had many jobs, but that none of them lasted long.

(12) In April 1989, a VA rehabilitation panel noted that appellant had been unable to adjust to academic stress and had held a series of jobs but demonstrated an inability to persevere to completion of any rehabilitation programs. The panel concluded that vocational rehabilitation for the veteran was infeasible.

(13) Personal hearing testimony from appellant and his wife dated May 1989. They described the veteran’s symptoms and the problems that he had had maintaining employment and trying to attend school.

Based on this evidence, the Board found that appellant had PTSD manifested by combat nightmares, insomnia, irritability, and depression productive of no more than severe impairment in the ability to obtain or retain employment. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1992). The Board stated that “it is our opinion that the objective medical evidence [did] not demonstrate that the veteran [had] symptoms so totally incapacitating as to result in an inability to obtain or retain employment.” The Board noted that it was cognizant of the opinions expressed by a physician and a psychologist who had been treating the veteran, but on the most recent VA examination, appellant [43]*43was oriented and his judgment and insight were intact.

By letter dated June 12, 1989, appellant requested reconsideration of the decision. The record reflects that the motion for reconsideration was granted. An expanded panel of the Board was convened to reconsider his appeal. In letters dated June 28, and October 6 and 28, 1989, and in an informal hearing presentation dated November 21, 1989, appellant argued that the Board’s June 1989 decision was in error. On reconsideration, the Board denied appellant’s claim for an increased rating and also determined that the June 1989 decision was not the product of “obvious error.”

In a June 1992 hearing during adjudication of appellant’s reopened claim, appellant’s service representative, Mr. Hamer, attempted to raise the issue of CUE. Mr. Hamer stated:

... He asked for benefits to be awarded retroactive to 1989.

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Bluebook (online)
6 Vet. App. 40, 1993 U.S. Vet. App. LEXIS 700, 1993 WL 467847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fugo-v-brown-cavc-1993.