Hamilton v. Derwinski

2 Vet. App. 671, 1992 U.S. Vet. App. LEXIS 212, 1992 WL 182870
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 4, 1992
DocketNo. 90-470
StatusPublished
Cited by17 cases

This text of 2 Vet. App. 671 (Hamilton v. Derwinski) 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
Hamilton v. Derwinski, 2 Vet. App. 671, 1992 U.S. Vet. App. LEXIS 212, 1992 WL 182870 (Cal. 1992).

Opinion

MANKIN, Associate Judge:

Stanley A. Hamilton appeals a February 14,1990, decision of the Board of Veterans’ Appeals (BVA or Board), which denied entitlement to service connection for post-traumatic stress disorder (PTSD) incurred during his tour of duty in Vietnam. The Court has jurisdiction of the case pursuant to 38 U.S.C. § 7252(a) (formerly § 4052(a)). It appears that, while the medical diagnoses and opinions are virtually unanimous in concluding that appellant has post-traumatic stress disorder, the adjudicators inexplicably are not convinced that appellant suffered sufficient stressors while in military service to conclude that the PTSD is service connected. Subsequent to the BVA decision, the Secretary of Veterans Affairs (Secretary) revised the adjudication manual provision governing the evidentiary threshold necessary to find service connection. Therefore, the Secretary’s motion for remand will be granted to permit the BVA to apply the current manual provision and to readjudicate the claim.

I. BACKGROUND

Stanley A. Hamilton served on active duty in the United States Army from September 1967 to September 1969, serving in Vietnam from January to September 1969 as a small arms repairman. R: at 11. [672]*672Hamilton’s separation examination revealed no signs of psychiatric distress or disorders. R. at 8-9. On May 21, 1985, Hamilton filed his first claim for service connection for PTSD. R. at 14-19. A private therapist sent a letter to the Veterans’ Administration (now the Department of Veterans Affairs) (VA) recommending further psychiatric examination for personality disorder, alcoholism, and possible PTSD. R. at 21. The Disability Evaluation form lists complaints of loss of memory, strange feelings resulting in quick anger, nervousness, uneasy sleeping, strange conversations, doing strange things, and inability to maintain a job for any length of time since service. R. at 23, 27. A psychiatric examination conducted on July 23, 1985, by a VA physician, Dr. E. Haskell Schell, Jr., concluded that Hamilton could best be described as having

atypical personality disorder 301.89, whose personality development has been restricted by a serious developmental reading disorder 315.00, and the effects of alcohol abuse now in remission of 10 years duration 305.03. Distortions in his social adaptation can be attributed to the above diagnosis. His combat experience and reaction to it does not support the diagnosis of [Post-traumatic] Stress Disorder. R. at 29, 31-36.

Based on Dr. Schell’s diagnosis, the rating decision of September 10, 1985, denied service connection for a psychiatric disorder, claimed as PTSD, and stated that the veteran’s disability was the result of his own willful misconduct due to alcoholism. R. at 37.

Hamilton reopened his claim on April 29, 1986, by stating that he was receiving ongoing treatment at a VA medical center (VAMC). R. at 40. Dr. Roger K. Pitman, the Chief of Psychiatry Services there, examined Hamilton on April 9, 1986, after a referral from Mr. Brock, a counselor at the Vietnam Veterans Center. R. at 44-46. In October 1985, Hamilton had been sent to the New Hampshire Hospital on a commitment by the Monadnock Mental Health Center, which noted his treatment at the White River Junction VAMC. R. at 44. The diagnosis was: “1. post-traumatic stress disorder, post-Vietnam. 2. Minimal brain disfunction 3. Rule out mental retardation.” R. at 45. Dr. Pitman recommended that the medical records from the aforementioned hospitals and the claims folder be obtained for further evaluation, and that neuropsychological testing be done, if not already done elsewhere. R. at 46. On May 9,1986, Dr. Pitman prescribed some tranquilizers for the veteran’s nervousness and recommended neuropsychological testing again. R. at 43.

On May 20, 1986, the rating board confirmed the September 1985 rating decision, and denied service connection for PTSD because there was “no objective evidence of requisite stressor.” R. at 49-50. Appellant filed his Notice of Disagreement (NOD) on June 1986 and appealed to the BVA in July 1986. R. at 53, 61. A formal hearing was held on September 24, 1986. R. at 63-68. The New Hampshire Hospital sent some medical records to the VA indicating that the veteran was involuntarily admitted and hospitalized from April 17, 1985, to April 19, 1985, because he was feeling angry at his wife, took a gun from his home, went into the woods, and pointed the gun at his head. R. at 71-74. The principal diagnosis was atypical depression, but appellant was also diagnosed with an antisocial personality disorder. R. at 73.

On February 13, 1987, the rating board continued the denial of service connection for any nervous disorder, including PTSD. R. at 75-76. On June 12, 1987, the BVA remanded appellant’s case in order to: 1) obtain the veteran’s complete military personnel file; and 2) have the veteran examined by two psychiatrists who had not previously examined him with the complete claims file before them, so a complete current psychiatric diagnosis could be made. A new rating decision was deferred, pending results of these findings. R. at 85-88.

A VA psychiatrist, Dr. Luigi N. Dolcino, performed a psychiatric examination of Hamilton on December 23, 1987, and made a definite diagnosis of PTSD, in addition to alcohol abuse, mixed developmental disorder, and stress from the Vietnam War. He also recommended that neurological testing [673]*673be done. R. at 91-92. Based on that one examination and apparently without any neurological testing, the rating board continued to deny service connection for PTSD. R. at 93-94. There was some correspondence, without any results, between the VA and the U.S. Army and Joint Services Environmental Support Group to verify the specific Vietnam stressors described by the veteran. R. at 106-09. In a December 14, 1988, decision, the BVA again remanded appellant’s case for “a definite diagnosis so [the BVA] can fairly rule in or rule out the presence of a post traumatic stress disorder.” R. at 112-15.

On January 31, 1989, Hamilton was examined by Dr. James Reinhard and Dr. Lial Kofoed, who diagnosed a definite case of PTSD and a learning disability. R. at 121-26. They stated that “[h]e currently clearly meets the diagnostic criteria for post-traumatic stress disorder. Specifically there are events and stressors that would be markedly disturbing to almost anyone.... There is no evidence that these symptoms are specifically related to any other Axis 1 Diagnosis or personality disorder.” R. at 124-25. Following the above findings, a February 24, 1989, rating decision continued the prior denial of PTSD, because “there [were] no objective findings of [a] life threatening stressor.” R. at 127. Appellant filed another NOD on March 22, 1989. R. at 134. A formal hearing was held on May 16, 1989, where more information about the “stressors” was given by the veteran under oath. R. at 136-51. No follow-up was made to the Environmental Support Group to verify this new information. The hearing officer still denied service connection for PTSD. R. at 152. Finally on February 14, 1990, the BVA concluded that “[t]he veteran is not shown to have a psychiatric disorder, including post-traumatic stress disorder, which was incurred in or aggravated by service.” Stanley A. Hamilton, BVA 90-04496, at 10 (Feb. 14, 1990). From that BVA decision the veteran appealed the denial of his claim to this Court.

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Bluebook (online)
2 Vet. App. 671, 1992 U.S. Vet. App. LEXIS 212, 1992 WL 182870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamilton-v-derwinski-cavc-1992.