Hohol v. Derwinski

2 Vet. App. 169, 1992 U.S. Vet. App. LEXIS 40, 1992 WL 18624
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 7, 1992
DocketNo. 90-1002
StatusPublished
Cited by8 cases

This text of 2 Vet. App. 169 (Hohol 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
Hohol v. Derwinski, 2 Vet. App. 169, 1992 U.S. Vet. App. LEXIS 40, 1992 WL 18624 (Cal. 1992).

Opinion

NEBEKER, Chief Judge:

Appellant, Gerald M. Hohol, appeals the May 23, 1990, Board of Veterans’ Appeals (BVA or Board) decision which reduced his disability rating for post traumatic stress disorder (PTSD) from 100% disabling to 70% disabling. We hold the Board’s finding that the veteran had sustained material improvement under the ordinary conditions of life to be clearly erroneous. Furthermore we hold that the Board committed legal error when it failed to consider appellant’s case under 38 C.F.R. § 4.16(c) (1990).

I.

The veteran performed military service from August 1965 through April 1969, which included combat duty in Vietnam. On December 30, 1983, he underwent an examination for compensation and pension purposes. The Veterans’ Administration (now the Department of Veterans Affairs) (VA) doctor reported that appellant was “markedly tense” and anxious, that his sleep pattern was disturbed by nightmares, and that he hallucinated often. R. at 23. The doctor also found appellant “alert and fully oriented” and his conversation “to be relevant [showing] no looseness of associations.” Appellant was diagnosed as suffering from PTSD. Based on this examination, the VA Regional Office (RO) granted appellant service connection for PTSD, and rated it as 100% disabling on February 1, 1984.

Appellant was examined again for compensation and pension purposes on April 19, 1985. He reported that he had trouble sleeping and suffered from hallucinations of his time in Vietnam. He also told the examiner that he had no social life and spent all of his time caring for his two boys; his speech was relevant and coherent. R. at 38. The examiner found him to be unemployable and still suffering from [171]*171PTSD. On May 22, 1985, an RO decision continued his disability rating at 100%.

On October 12, 1988, he was examined again by VA. Again he reported sleep disturbance, constant thoughts of the war, and nightmares. He also reported having trouble with most people, but being tolerant of the ill and those he was capable of helping. The report described him as “cooperative, coherent, relevant, well oriented, competent, tense and anxious.” The report also noted that appellant had not worked for eight years, and was seen weekly at the Mental Health Clinic at the Bay Pines Facility (Bay Pines Facility). Appellant was again diagnosed as suffering from PTSD: “chronic, active, mild to moderate.” R. at 41-42. Based on that examination, and without considering medical records from the Bay Pines Facility, the RO reduced appellant’s rating from 100% disabling to 70% disabling. The RO made no mention of any regulation other than 38 C.F.R. § 3.105(e) (1988), but said that medical records from the Bay Pines Facility were being requested and that appellant would be reexamined in the future. R. at 43.

On December 14, 1988, appellant received a letter from VA which told him that VA had “determined that there has been an improvement in your post-traumatic stress disorder. This disability is now evaluated 70 percent disabling.” R. at 68. Appellant submitted a notice of disagreement on January 18, 1989, and asked VA to obtain all of his medical records from the Bay Pines Facility. VA sent appellant a statement of the case specifying the issue as “increased evaluation for service connected [PTSD]”, citing 38 U.S.C. § 355, 38 C.F.R. § 4.132, 38 C.F.R. § 3.102, and 38 C.F.R. § 3.321 (1989) as the grounds for denying the veteran an increase. R. at 71-74. A rating decision dated April 20, 1989, confirmed the 70% rating. R. at 75.

Medical records from the Bay Pines Facility disclosed that appellant began treatment in October of 1984. Dr. Leo R. Ryan, a clinical psychologist at the Bay Pines Facility, reported that as of December 27, 1988, appellant’s “condition [remained] chronic and severe.” R. at 64. Dr. Ryan also noted that appellant had “marked sleep disorder and frequent and intense nightmares which in turn [produced] fatigue and [augmented] his chronic major depressive state.” Id. On January 3, 1989, Dr. Ryan wrote that appellant was unemployed and “it [appeared] unlikely that he will be able to obtain or maintain gainful employment due to the depth of his psychopathology.” R. at 66-67.

When these records were reviewed, VA issued a supplemental statement of the case. R. at 77-79. A rating decision dated June 26, 1989, continued the 70% rating. R. at 80. On July 13, 1989, appellant appealed to the BVA. In his appeal form, appellant wrote that he was totally isolated from the community, visited his doctors once a week, and was totally unable to obtain or retain employment; he requested that VA obtain additional outpatient treatment records. R. at 81. On March 31, 1989, VA issued yet another supplemental statement of the case. R. at 84-86.

Appellant underwent a special neuropsy-chiatric examination on October 30, 1989. The examiner reported, inter alia, that appellant suffered from PTSD and was unemployable. R. at 108-109. A subsequent rating decision dated November 21, 1989, continued the 70% rating. VA issued another supplemental statement of the case on December 1, 1989.

On May 23, 1990, the Board confirmed the 70% rating. Although the Board phrased the issue on appeal as entitlement to an increased rating for PTSD, the Board noted that the veteran’s appeal stemmed from the December 1988 rating action which reduced his 100% schedular evaluation to 70%. Consequently the Board’s decision focused on the correctness of the December 1988 rating action. The Board applied 38 C.F.R. §§ 3.343 and 3.344 (1990) and found it clear from the record that

there has been a material improvement in pertinent aspects of [appellant’s] disability picture, at least to an extent that he no longer experiences totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, nor is he demonstrably unable to obtain or re[172]*172tain employment, despite his not having worked for a period of several years.

R. at 8.

II.

PTSD is rated under 38 C.F.R. § 4.132, Diagnostic Code 9210 (1990) (DC 9210) which characterizes 100% and 70% disabilities as follows:

100 percent:

Active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability.

70 percent:

With lesser symptomology such as to produce severe impairment of social and industrial adaptability....

Once rated as totally disabled (100%), a veteran will not have his rating reduced without a showing of material improvement:

a)

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Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 169, 1992 U.S. Vet. App. LEXIS 40, 1992 WL 18624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hohol-v-derwinski-cavc-1992.