Greyzck v. West

12 Vet. App. 288, 1999 U.S. Vet. App. LEXIS 121, 1999 WL 177459
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 31, 1999
DocketNo. 97-2204
StatusPublished
Cited by22 cases

This text of 12 Vet. App. 288 (Greyzck 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
Greyzck v. West, 12 Vet. App. 288, 1999 U.S. Vet. App. LEXIS 121, 1999 WL 177459 (Cal. 1999).

Opinion

HOLDAWAY, Judge:

The appellant, Lawrence M. Greyzek, appeals a November 1997 decision of the Board of Veterans’ Appeals (BVA or Board) which determined (1) that clear and unmistakable error did not exist in an August 1961 VA regional office (VARO) decision to reduce the appellant’s disability rating for a psychoneu-rotic disorder from 30% to 10%, and (2) that his claim for service connection for a low back disorder was not well grounded. Both parties have filed briefs. The appellant seeks reversal of both of the Board’s determinations. The Secretary concedes that the claim for service connection of the back disorder was well grounded, but seeks an affir-mance of the Board’s finding that the VARO had not committed clear and unmistakable error. The Court has jurisdiction of the matter under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm the decision of the Board in part, reverse the decision in part, and remand a matter for readjudication.

I. FACTS

The appellant is a combat veteran who served in the U.S. Army from April 1943 to December 1945. He was also held as a prisoner of war by the German army from February 1944 to April 1945. In October 1946, the appellant was awarded service connection for a psyehoneurotic disorder that had been aggravated during service and direct service connection for residuals of frozen feet as a prisoner of war. The psyehoneurotic condition was initially rated 20% disabling and the foot disorder was rated 10% disabling. In December 1948, the appellant was examined by three private physicians who all confirmed that the appellant suffered from a mild to moderate psychoneurosis with complaints of gastrointestinal and foot pain. None of the doctors found any organic basis for the appellant’s gastrointestinal or foot pain. In March 1949, the disability rating [290]*290for the appellant’s psychoneurosis was increased to 30% to include the foot pain. The disability rating for residuals of frozen feet was reduced to noncompensable.

In July 1961, the appellant underwent a VA psychiatric examination. The appellant reported that he had been working at General Electric for more than ten years and had lost no time at work for emotional or other medical reasons. The examiner diagnosed the appellant with a psychoneurotic disorder that was primarily related to an anxiety reaction. The examiner stated:

This man is sane and competent. He now has only [a] slight[,] if any, degree of either vocational or social inadaptability. He continues to have intermittent difficulty with [gastrointestinal] symptoms and is concerned about his [gastrointestinal] tract. However, his emotional status has improved considerably since that described in 1948. [The prognosis is good for a continued adjustment at this level and hospitalization is not indicated or anticipated.

The examiner also noted that the veteran had not had a very serious attack of his symptoms for more than a year. In August 1961, the VARO decreased the appellant’s disability rating for his psychoneurosis to 10%. The decreased rating was effective in October 1961, sixty days after the VARO’s decision. The appellant did not appeal the VARO decision to reduce his disability rating.

In 1979, an x-ray study of the appellant’s lumbosacral spine revealed mild degenerative arthritis. An x-ray examination taken pursuant to a 1980 VA examination confirmed that the appellant was suffering from minimal degenerative arthritis of the lumbar spine.

In August 1993, the appellant alleged that the August 1961 VARO decision was clearly and unmistakably erroneous because the reduction was based on a single examination, which is contrary to the requirements of 38 C.F.R. § 3.344 (1998). The appellant also alleged that he was entitled to presumptive service connection for post-traumatic osteoarthritis in his back relating to the beatings he suffered as a prisoner of war. In February 1995, the VARO denied both the claim for clear and unmistakable error and for service connection of his back condition. The appellant filed a Notice of Disagreement and additional evidence demonstrating that he suffered from a degenerative back disease.

In June 1995, the VARO received a letter from James V. Garemore, Jr., D.C., who stated that the appellant had been under his care since 1993. He also stated that the appellant’s “problem [was] a[d]egenerative [a]rthritie condition by nature ([degenerative [j]oint [disease) and ha[d] been accelerated due to the traumatic stress from his duty in the United States Army.” At a September 1995 VA hearing, the appellant testified that he had injured his back while working as a prisoner of war.

On appeal to the BVA, the Board determined that the August 1961 VARO decision to reduce the appellant’s disability rating for his psychoneurosis was not clearly and unmistakably erroneous. The Board noted that the VARO’s decision was based on the extent to which the appellant’s symptomatology would impair his adaptability to his social and industrial environment. The Board stated that the 1961 VA examination report indicated that the veteran’s degree of industrial and social inadaptability were slight,'if any. The Board stated that a reduction of a disability rating based on only one examination is appropriate “in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been indicated.” See 38 C.F.R. § 3.344(a) (1998). The Board concluded that the evidence of record at the time of the rating reduction supported the VARO’s decision to reduce the disability rating based on only one medical examination.

The Board also determined that the appellant had not submitted nexus evidence between his back injury he suffered as a prisoner of war and his current degenerative disc disease. The Board found that in order to be entitled to the presumption of service connection, there must be a diagnosis of post-traumatic osteoarthritis. The Board also determined that the statement by Dr. Gare-more was not competent medical evidence of a nexus between the veteran’s current back [291]*291disability and service because the doctor did not link the back condition to a specific trauma or incident in service.

II. ANALYSIS

A. Back Disorder

“[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). A well-grounded claim is “a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [§ 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where a veteran was held as a prisoner of war for at least thirty days, service connection is presumed if the veteran manifests certain chronic diseases to a degree of 10% at any time after service. See 38 U.S.C. § 1112

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Bluebook (online)
12 Vet. App. 288, 1999 U.S. Vet. App. LEXIS 121, 1999 WL 177459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greyzck-v-west-cavc-1999.