King v. Brown

4 Vet. App. 519, 1993 U.S. Vet. App. LEXIS 149, 1993 WL 113570
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 15, 1993
DocketNo. 91-1457
StatusPublished
Cited by1 cases

This text of 4 Vet. App. 519 (King 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
King v. Brown, 4 Vet. App. 519, 1993 U.S. Vet. App. LEXIS 149, 1993 WL 113570 (Cal. 1993).

Opinion

IVERS, Associate Judge:

The veteran appeals the May 13, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied entitlement to service connection for a chronic acquired psychiatric disability. On March 18, 1992, the veteran filed his brief. On May 20, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for summary af-firmance, for acceptance of this motion in lieu of a brief, and for a stay of proceedings pending a ruling on the motion. The Court has jurisdiction of the case under 38 U.S.C.A. § 7252(a) (West 1991).

I. BACKGROUND

The veteran, Danny L. King, served on active duty with the United States Army from January 29, 1971, until February 9, 1973. R. at 1.

Originally, the veteran received an other than honorable (OTH) discharge. R. at 2. That discharge was based on frequent misconduct, to include over 200 days in AWOL (absent without leave) status. R. at 17. At the time of his discharge, the veteran was assigned to a U.S. Army Retraining Brigade, an internal Army disciplinary unit. While at the Retraining Brigade, the veteran engaged in repeated “discreditable acts.” Id. Consequently, the commander of the Retraining Brigade recommended that the veteran receive an “Undesirable Discharge.” Id. As part of the discharge process, the veteran received a “mental status evaluation,” which found that the veteran had no mental illness and that he was fully capable of participating in discharge proceedings. An undated copy of this evaluation is in the record. R. at 16.

The veteran’s OTH discharge was eventually upgraded to “discharge under honorable conditions,” by the Adjutant General of the Army, effective June 12,1978. R. at 2. The veteran’s first appeal to the BVA for service connection for a chronic acquired psychiatric disorder was in 1984. The BVA denied that appeal in an August 20, 1984, decision. R. at 59-62. In October 1984, the veteran applied again for service connection for “alcohol, drugs, head injury, nerves.” R. at 64-67. He also filed two “Statement[s] In Support Of Claim,” over a two-year span, first in October 1984 and again in October 1986, to reopen the claim from the 1984 BVA decision. R. 68-69, 71-72, 79-80. He submitted additional evidence in the form of private medical records from Andrew W. McKendry, Ed.D., and William Cone, M.D., who had treated the veteran. R. at 74-78, 82-103. The veteran also submitted his own Veterans’ Administration (now Department of Veterans Affairs) (VA) medical records from September 1987 through August 1988, R. at 125-50, and testified, under oath, at a hearing conducted at the VA Regional Office (RO) in January 1988, R. at 151-64. The veteran later produced more evidence in the form of medical records: private medical records, dated June 1987 through April 1988, from Doctors Kim and Chung, R. at 165-75; and more medical records from Dr. Cone, from April and September 1988, R. at 177, 179. On August 26, 1988, the BVA reviewed the veteran’s appeal on the basis of entitlement to a permanent and total disability rating for pension purposes. R. at 181-85. Finding the veteran capable of “some form of substantially gainful em[521]*521ployment,” they denied the appeal. R. at 185.

On October 12, 1988, the veteran sought entitlement to service connection for post-traumatic stress disorder (PTSD). R. at 190-93, 195-96. The VARO denied service connection in a rating decision, dated February 10, 1989. R. at 198-99. On August 7, 1989, the veteran again filed for service connection for PTSD and sought to reopen his claim for non-service-connected pension. R. at 201-03. He also submitted more medical reports from Dr. Cone from March 1989. R. at 205-08. The VARO denied both claims in an August 21, 1989, rating decision. R. at 210-11.

The veteran then sought service connection for a “nervous condition” in a statement dated May 7, 1990. R. at 213. He filed a “Statement in Support of Claim,” dated June 28, 1990. In that statement, the veteran contended that his initial OTH discharge was improper and that he should have initially received a medical discharge with a disability rating due to psychiatric problems. R. at 218. In support of this contention, the veteran submitted a number of documents. Among those was a “Memorandum of Consideration,” dated February 22,1989, from the Department of the Army (DA) Board for Correction of Military Records. R. at 221-23. While this “memorandum” appears to have been preliminary in nature, it did make the following “finding”:

The mental status evaluation was conducted by a person who could not be identified as an [sic] qualified officer. The Board determined that this lack of identification casts a cloud over the propriety of the separation. It determined that the mental status was not conducted in accordance [with] regulations as recorded in AR 635-200.

Id. at 222 (emphasis added). Nonetheless, that claim was denied in a rating decision, dated July 18, 1990. R. at 225-26. The veteran filed a Notice of Disagreement (NOD) on July 26, 1990. R. at 228. While his NOD was terse in nature, the veteran again raised the contention that he had received his initial OTH discharge improperly, and that he should have been discharged for medical reasons. Id.

A Statement of the Case was issued on August 29,1990. R. at 230-34. The veteran submitted a statement from his accredited representative, dated October 12, 1990. R. at 235. He also made an informal hearing presentation on January 8, 1991. R. at 244-45. In both instances, the veteran appealed only the issue of new and material evidence with regard to service connection for a nervous condition. The veteran did not repeat his contention that he should have been granted a medical discharge.

The BVA issued its decision in May 1991. Danny G. King, BVA 91-16651 (May 13, 1991). The BVA reviewed the appeal on the issue of whether new and material evidence had been submitted. New and material evidence would give rise to a new factual basis warranting service connection for a chronic acquired psychiatric disability. Id. at 1. The evidence considered included: (1) the medical statements from Dr. Cone; (2) VA medical records from December 1987, February 1988, and October 1988; and (3) private hospitalization records from March 1989. Id. at 2-3. The BVA concluded that the evidence submitted since the 1984 decision was new and material. Id. at 5. However, the BVA also concluded:

The recently submitted Department of Veterans Affairs medical records are not at all favorable to the veteran’s claim. They reflect treatment and evaluation primarily for continuous alcohol dependence, continuous drug dependence, and a personality disorder. The records provide no indication of a chronic acquired psychiatric disorder attributable to the veteran’s active service. Accordingly, the additional evidence does not provide a new factual basis to warrant a grant of service connection for a chronic acquired psychiatric disorder, to include post-traumatic stress disorder. The Board has weighed the evidence in this case and we find that the balance of the evidence weighs more strongly against a grant of service connection, and is not so evenly divided as to permit the Board to resolve the benefit of the doubt in favor of the veteran.

Id. at 5. The BVA denied service connection for a chronic acquired psychiatric dis[522]*522order, to include PTSD. Id. at 6. The veteran filed a timely appeal to this Court.

II.

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Related

Wilkinson v. Brown
8 Vet. App. 263 (Veterans Claims, 1995)

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Bluebook (online)
4 Vet. App. 519, 1993 U.S. Vet. App. LEXIS 149, 1993 WL 113570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-brown-cavc-1993.