Hicks v. Principi

4 Vet. App. 2, 1993 U.S. Vet. App. LEXIS 898, 1993 WL 2214
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 5, 1993
DocketNo. 91-323
StatusPublished

This text of 4 Vet. App. 2 (Hicks v. Principi) 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
Hicks v. Principi, 4 Vet. App. 2, 1993 U.S. Vet. App. LEXIS 898, 1993 WL 2214 (Cal. 1993).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, veteran Carl Hicks, appeals from a November 2, 1990, Board of Veterans’ Appeals (Board or BVA) decision denying entitlement to a permanent and total disability rating for pension purposes. Carl T. Hicks, BVA 90-47069 (Nov. 2, 1990). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. On May 14, 1992, the appellant filed a motion to remand. Summary disposition is appropriate in this case because it is one “of relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will deny the Secretary’s motion and will grant the appellant’s motion, vacate the BVA’s November 2, 1990, decision, and remand the matter to the BVA for prompt readjudication consistent with this decision.

I. BACKGROUND

The veteran served in the United States Navy from July 1972 to July 1976. R. at 1. On June 8,1984, he filed a claim for entitlement to service connection for heart and hearing conditions. R. at 20-21. On July 31, 1984, a Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) denied entitlement to service connection for these conditions. R. at 56. On August 2,1989, the veteran filed an “Income-Net Worth Statement” in support of a claim for VA non-service-connected pension based on total disability. R. at 57. An October 23, 1989, RO decision denied the claim, while assigning a 10% rating for non-service-connected hypertension with tachycardia. R. at 81. On January 17, 1990, the veteran reopened the pension claim. R. at, 90. A March 6, 1990, RO decision continued the denial, while assigning an additional 10% non-service-connected rating for “major depression with history of anxiety and somatic dysfunction”. R. at 115. On March 22, 1990, the veteran filed a VA Form 1-9 (Appeal to BVA) as to his denied claim for VA pension. R. at 118. An August 17, 1990, RO rating decision on appeal continued the denial of pension. R. at 155. In its November 2, 1990, decision, the BVA also denied the claim. Hicks, BVA 90-47069, at 5.

II. ANALYSIS

The Board is required to base its decisions on “all evidence and material of record”, 38 U.S.C. § 7104(a) (formerly § 4004), and to provide a “written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record”, 38 U.S.C. § 7104(d)(1) (formerly § 4004). See Brown (Clem) v. Derwinski, 2 Vet.App. 444, 447-48 (1992); Douglas v. Derwinski, 2 Vet.App. 435, 438-39 (1992) (en banc); Roberts v. Derwinski, 2 Vet.App. 387, 390-91 (1992); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

Pursuant to 38 C.F.R. § 4.17 (1991), a 40-year old claimant seeking a total disability rating for pension based on unemploya-[4]*4bility and age must have either one permanent disability ratable at 60% or more; or two or more disabilities, one of which must be ratable at 40% or more, and sufficient additional disability to bring the combined rating to 70% or more; and, in either case, the disability or disabilities must render the claimant unable to secure or follow a substantially gainful occupation. Pursuant to 38 C.P.R. § 3.321(b)(2) (1991), certain VA officials may approve a permanent and total disability rating for pension purposes on an extra-schedular basis where “the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule but is found to be unemployable by reason of his or her disability(ies), age, occupational background and other related factors”. Therefore, the issue is whether all of the veteran’s conditions render him sufficiently disabled to qualify for non-service-connected pension on a schedular or extra-schedular basis.

The Board failed to provide adequate reasons or bases for finding that the veteran was not permanently precluded from substantially gainful employment. Specifically, the Board did not address the veteran’s patchwork history of employment. In his March 22, 1990, Form 1-9, the veteran wrote that he had resigned from a teaching position after only one year because he “was unable to cope with the stress associated with the job.” R. at 118. He also wrote that he had held 11 different jobs in the one-year period between August 1987 and August 1988. Ibid.; R. at 106. The Board concluded:

When considering the veteran’s relative youth, varied employment experience, college-level education, and exhibited disabilities, we do not find that the veteran is permanently precluded from gainful employment.

Hicks, BVA 90-47069, at 5. The Board’s conclusion does not “express findings with sufficient detail or clarity ... to inform the claimant and to make meaningful review by this Court possible.” Sammarco v. Derwinski, 1 Vet.App. 111, 113-14 (1991); see also Masors v. Derwinski, 2 Vet.App. 181, 188 (1992) (BVA’s conclusory statement that veteran was not precluded from substantially gainful employment because of relatively young age, college education, and work experience was inadequate); Hyder v. Derwinski, 1 Vet.App. 221, 224 (1991) (BVA’s conclusory statement that veteran’s disorder did not permanently preclude substantially gainful employment was inadequate).

The Board also failed to provide adequate reasons or bases for rejecting certain evidence of record. On August 10, 1990, the veteran sent to the RO a June 14, 1990, letter from Dr. Riaz, a psychiatrist, and Ms. Johnson, a case manager, at the Southern Highlands Community Mental Health Center, where the veteran had been seeking treatment. In this letter, the psychiatrist stated:

Patient has a combination of emotional and physical problems which makes him incapable of gainful employment. He will be unable to interact appropriately with co-workers and supervisors. He will be unable to perform routine repetitive tasks at a sustained level. He is not a suitable candidate for vocational rehabilitation.

R. at 148. In a June 4, 1990, evaluation entitled “Medical Assessment to Do Work-Related Activities (Mental)”, Dr. Riaz indicated that the veteran’s ability to make occupational, performance, and personal-social adjustments was mostly poor or nonexistent. R. at 149-50. Ordinarily, the statements of a treating physician or psychiatrist are probative evidence of the veteran’s condition. See Masors, 2 Vet.App. at 187 (observations and opinions of treating psychotherapist, based upon several years of treatment, are certainly pertinent to veteran’s claim of unemployability due to psychiatric disorder); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (doctor’s evidence on matter involving medical knowledge is generally more probative than evidence offered by lay witness). The Board must “account for the evidence which it finds to be persuasive or unpersuasive”, and provide reasons or bases for rejecting evidence submitted by or on be[5]*5half of the claimant. Gilbert, 1 Vet.App.

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4 Vet. App. 2, 1993 U.S. Vet. App. LEXIS 898, 1993 WL 2214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-principi-cavc-1993.