Hernandez-Toyens v. West

11 Vet. App. 379, 1998 U.S. Vet. App. LEXIS 1022, 1998 WL 485323
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 19, 1998
DocketNo. 97-1054
StatusPublished
Cited by56 cases

This text of 11 Vet. App. 379 (Hernandez-Toyens 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
Hernandez-Toyens v. West, 11 Vet. App. 379, 1998 U.S. Vet. App. LEXIS 1022, 1998 WL 485323 (Cal. 1998).

Opinion

STEINBERG, Judge:

The pro se appellant, veteran Jose M. Hernandez-Toyens, appeals an April 8, 1997, decision of the Board of Veterans’ Appeals (Board or BVA) denying as not well grounded his claim for Department of Veterans Affairs (VA) service connection for an acquired psychiatric disorder. Record (R.) at 7, 11. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). The appellant has filed a brief, and the Secretary has filed a motion for affirmance by a single judge. For the reasons that follow, the Court will reverse the decision of the Board and remand the matter for further development and adjudication.

I. Background

The veteran served in the U.S. Army from March 21 to April 12, 1977. R. at 14. Records from his enlistment examination are silent regarding any psychiatric disorders. R. at 16-21. His service medical records (SMRs) report that he was hospitalized from March 24 to March 28, 1977, after experiencing symptoms of, inter alia, depression and paranoia, and was diagnosed as having inadequate personality. R. at 41-67. Records from his separation examination report a history of inadequate personality. R. at 23-24.

In July 1992, the veteran filed with a VA regional office (RO) a claim for VA service connection for a nervous condition. R. at 71-74. In support, he submitted records from private physicians that report diagnoses of a depressive disorder. R. at 76-77, 81-82. In particular, a November 1992 private medical examination report stated the following:

Diagnosis:
Axis X Schizo[-]affective disorder depressive type
Axis II Paranoid traits
Axis III 1) Low back pain syndrome; 2) Bilateral [illegible]; 3) [illegible]; 4) hemorrhoids
Axis IV 1) Loss of employment; 2) Military Life; 3) Physical condition
Axis V Poor functioning during last year

R. at 81-82. The veteran underwent a VA medical examination in December 1992, but the diagnosis was deferred due to his failure to report for a requested psychology examination. R. at 87-88. In January 1993, the VARO denied his claim on the ground that the veteran’s service medical records “are completely negative for complaints of or treatment for conditions claimed”. R. at 98-100. The veteran filed a timely appeal to the Board (R. at 102, 132), and a hearing was held before the RO in January 1994 at which [381]*381the veteran testified under oath about his experiences in the Army (R. at 140-49).

Subsequently, the RO obtained outpatient records from a VA medical facility that reported a history of treatment for a nervous disorder. R. at 184-93. In February 1995, the RO again denied the veteran’s claim based on an absence of evidence connecting the veteran’s psychiatric condition to his period of service. R. at 195-96. In response, the veteran submitted 1989 and 1990 Social Security Administration (SSA) medical records that reported a diagnosis of depressive syndrome. R. at 217-24, 240-52. In October 1995, the RO once more denied his claim on the same ground. R. at 253-55. In the April 8, 1997, BVA decision here on appeal, the Board denied as not well grounded the veteran’s claim on the ground of an absence of evidence of a nexus between the veteran’s in-service treatment of symptoms of depression and paranoia, diagnosed as inadequate personality, and his current acquired psychiatric disorder. R. at 7,11.

II. Analysis

Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[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.” The Court has defined a well-grounded claim as follows: “[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 [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded service-connection claim generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the asserted in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed.Cir.1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra), cert. denied, — U.S. —, 118 S.Ct. 2348, 141 L.Ed.2d 718 (1998); Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit v. Brown, 5 Vet.App. 91, 93 (1993)); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992) (absent “proof of a present disability[,] there can be no valid claim”); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The credibility of evidence in support of the claim is generally presumed in determining whether a claim is well grounded. See Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). A Board determination whether a claim is well grounded is subject to de novo review by the Court under 38 U.S.C. § 7261(a)(1). See Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit, supra.

In the present case, the Court holds, upon de novo review and presuming the credibility of the evidence submitted by the veteran, that the veteran has submitted a well-grounded claim. Records from a VA medical facility and the SSA establish that he currently suffers from a psychiatric condition (R. at 184-93, 217-24, 240-52). See Epps, Caluza, Brammer, and Rabideau, all supra. Moreover, the veteran has proffered evidence that he experienced psychiatric difficulties in service; the in-service hospitalization records reported symptoms of, inter alia, depression and paranoia and that the examining physician had diagnosed him as having inadequate personality (R. at 41-67). See Epps and Caluza, both supra. Finally, as to the question of a nexus between his current condition and service, see Epps, Caluza, and Grottveit, all supra, the November 1992 private medical examination report contains an Axis IV assessment of, inter alia, “Military Life”. R. at 81-82. The Diagnostic and Statistical Manual of Mental Disorders, third edition, revised, [hereinafter DSM-III-R], which was in effect at the time of the examination, provides the following:

Axis IV provides a scale ... for coding the overall severity of a psychosocial stressor or multiple psychosocial stressors that have occurred in the year preceding the current evaluation and that may have contributed to [the development or exacerbation of a mental disorder]_ The cur[382]

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Bluebook (online)
11 Vet. App. 379, 1998 U.S. Vet. App. LEXIS 1022, 1998 WL 485323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hernandez-toyens-v-west-cavc-1998.