Guerrieri v. Brown

4 Vet. App. 467, 1993 U.S. Vet. App. LEXIS 128, 1993 WL 100645
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 7, 1993
DocketNo. 90-679
StatusPublished
Cited by128 cases

This text of 4 Vet. App. 467 (Guerrieri 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
Guerrieri v. Brown, 4 Vet. App. 467, 1993 U.S. Vet. App. LEXIS 128, 1993 WL 100645 (Cal. 1993).

Opinion

MANKIN, Associate Judge:

Appellant appeals a Board of Veterans’ Appeals (Board or BVA) decision, dated June 8, 1989, which denied service-connected disability benefits for appellant’s psychiatric disability. The Secretary of Veterans Affairs (Secretary) has submitted a Motion for Remand. Appellant submitted an affidavit in opposition to the Secretary’s motion. The Court has jurisdiction over this case pursuant to 38 U.S.C.A. § 7252 (West 1991).

I. FACTUAL BACKGROUND

The veteran served in the United States Army from February 1980 to February 1981. Prior to his enlistment in April 1978, appellant was hospitalized for thirteen days for symptoms of paranoid schizophrenia. Nevertheless, appellant’s service entrance examination report from January 1980 indicated normal psychiatric findings, and appellant was rated qualified for duty. In his report of medical history, appellant denied having been treated for a mental condition. Sometime in June 1980, appellant was assigned to duty at the U.S. Military Academy, at West Point, New York. Appellant claims that during his tour of duty he had difficulty coping with army life and was harassed by other soldiers. As a result of the stress, the veteran left his duty post without authorization and returned to his mother’s home, where he remained for about twenty-five days. The mother reported that during his stay appellant was moody, lacked personal hygiene, and did not sleep well. Initially she controlled his symptoms by medicating his orange juice and milk. When the supply of medication ran out, she called the military authorities to take appellant to a psychiatric hospital. In November 1980, the veteran was referred to the Walter Reed Army Medical Center for psychological testing. Appellant was diagnosed as suffering from schizophrenia, residual type, subchronic, and was deemed unfit for further military duty. In January 1981, a medical evaluation board determined that appellant’s psychiatric condition was abnormal and that he was unqualified for duty. Appellant indicated that he did not wish to continue active duty and signed a “Disposition Form” stipulating that he requested discharge for “physical disability based upon ... disability that was found to have existed prior to ... entry into active service.” He further stipulated that the medical board “found the disability neither incident to, nor aggravated by, [his] military service.” (emphasis added).

In February 1981, appellant claimed service connection for schizophrenia. In support of his claim, appellant submitted hospital records from the Psychiatric Inpatient Unit of the Coney Island Hospital from June 1981, where he was admitted after assaulting his father and threatening to kill his mother. These records show that appellant was again diagnosed with paranoid schizophrenia, and referred to a psychiatric center for further treatment. In addition, appellant submitted a medical record from the Day Treatment Center of the Coney Island Hospital showing treatment received from August to November 1981. Appellant’s claim for service connection was apparently denied. An appeal was taken to the BVA, which again denied the claim. The Board reasoned that “[t]he underlying pathology of the veteran’s schizophrenia was consistent before, during, and after service; and no increase ... is shown to have [been] incurred during service.” Alex V Guerrieri, 82-39089 BVA, at 35-36 (Apr. 11, 1983). The Board concluded that “[t]he presumption of soundness at entry [470]*470into service is rebutted,” and “[schizophrenia was not aggravated by service.”

The veteran reopened his claim for a psychiatric disorder in 1985. On May 1, 1987, the BVA issued a decision denying appellant’s claim. The new evidence considered by the Board consisted of: private medical reports showing appellant was treated in 1978 for psychotic behavior and received treatment after service; letters from physicians opining a causal relationship between the stress the veteran experienced in service and worsening of his condition; personal hearing testimony; letters from appellant’s mother and pastor; and college transcripts. Subsequent to the May 1 decision, the veteran submitted letters from Joseph G. Frechen, M.D., and David Plimpton, Ph.D., of South Beach Psychiatric Center, who treated appellant during 1985 to 1987. Both individuals stated that, in their opinions, the stresses of service aggravated appellant’s condition. The veteran also gave sworn testimony during a personal hearing at the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office in New York City held on March 25, 1988. At that time appellant testified that the Army had authorized his enlistment with full knowledge of his prior psychiatric treatment. He also testified that during service he attempted suicide, was handcuffed to a fence, and was shot at by fellow soldiers. Following the hearing, the rating board denied the veteran’s claim. In June 1989, the BVA again denied appellant’s claim for service connection for a psychiatric disability in the decision now on appeal before the Court.

II. ANALYSIS

A.

In its decision, the BVA concluded that the evidence submitted since the Board’s May 1987 decision does not provide a new factual basis which establishes entitlement to service connection. This determination relies on an analysis that has since been discredited by this Court’s holding in Manio v. Derwinski, 1 Vet.App. 140 (1991). In Manió the Court set forth a two-part test for determining whether evidence is “new and material” for purposes of reopening a claim. See 38 U.S.C.A. § 5108 (West 1991). The BVA must first determine whether the evidence submitted is “new and material.” Manió, 1 Vet.App. at 145. Second, if the evidence is new and material, then the case is reopened and the BVA must evaluate the appellant’s claim in light of all the evidence, both new and old. Id.

The question of whether evidence is new and material is a conclusion of law, which this Court reviews de novo. See Smith v. Derwinski, 1 Vet.App. 178, 180 (1991), Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). In order to be considered new, evidence must do more than merely summarize or repeat evidence submitted in previous proceedings. See Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1992); see also Colvin, 1 Vet.App. at 174. New evidence is considered material when “it is relevant and probative of the issue at hand.” Colvin 1 Vet.App. at 174. However, not every piece of new evidence, even if relevant and probative, will justify reopening. Id. In order to justify the reopening of a case based on new and material evidence, “there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Id.

The Secretary argues in his brief that the medical opinions offered by appellant’s treating psychiatrist, Dr. Frechen, and his treating psychologist, Dr. Plimpton, were not new because they are similar to evidence previously considered by the Board. The Court holds that the statements of Dr. Frechen and Dr. Plimpton are not “merely cumulative” under this Court’s precedent. Colvin, 1 Vet.App. at 175. Additionally, the Court finds that the opinions of Dr. Frechen and Dr. Plimpton corroborating the earlier medical opinions submitted by appellant to be relevant to and probative of the issue of service connection. Paller v. Principi, 3 Vet.App. 535 (1992).

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Cite This Page — Counsel Stack

Bluebook (online)
4 Vet. App. 467, 1993 U.S. Vet. App. LEXIS 128, 1993 WL 100645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guerrieri-v-brown-cavc-1993.