Kirwin v. Brown

8 Vet. App. 148, 1995 U.S. Vet. App. LEXIS 376, 1995 WL 273561
United States Court of Appeals for Veterans Claims·Decided May 10, 1995·No. No. 92-1238·Published·Cited by 4 cases

Opinion

IVERS, Judge:

Lahti Patrick Kirwin appeals a June 4, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for diverticulosis of the colon, irritable bowel syndrome, temporomandibular joint (TMJ) syndrome, and tinnitus, and reducing a 100% disability rating for service-connected post-traumatic stress disorder (PTSD), effective January 1, 1991. Lahti P. [150] Kirwin, BVA 92-13860 (June 24, 1992). In its decision, the Board also awarded a 100% disability rating for service-connected PTSD through December 1990. The Court has jurisdiction over the June 1992 BVA decision pursuant to 38 U.S.C. § 7252(a). For the reasons set forth below, the Court affirms in part and vacates in part the June 1992 decision of the BVA and remands the matter for readjudication consistent with this opinion.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Marine Corps from October 17,1969, to August 6,1971, and from October 14, 1971, to May 20, 1978, to include a tour in Vietnam for three months in 1972 and in Thailand for seven months in 1972. Record (R.) at 25-27, 40. In November 1982, following participation in a Vietnam Stress Treatment Program administered by VA, the appellant was diagnosed with PTSD. R. at 40. The appellant related several combat experiences involving being blown through the wall of a building by enemy rockets and being caught in firefíghts with the enemy. Ibid. He also related that he was beaten during basic training and that he was forced to renounce his conscientious objector beliefs as a member of the Seventh Day Adventist Church. Ibid.

On January 31, 1983, a VA regional office (RO) denied service connection for stomach ulcers and PTSD. R. at 53. According to a February 1983 letter from a VA psychiatrist, the appellant was given a primary diagnosis of PTSD and was found to have been totally disabled and unable to return to work since July 1982. R. at 57. In an April 1983 VA Social and Industrial Survey report, a VA examiner similarly concluded that “this veteran is seriously limited in income[,] ... having to depend upon his parents, and his unemployment compensation to pay the bills. Socially, he has only a few close relationships, and even fewer that have lasted for any length of time. I believe that the veteran is severely impaired socially.” R. at 62. On June 21,1983, a confirmed rating decision continued the denial of service connection for PTSD. R. at 66.

Subsequent letters from various sources, including the appellant’s treating VA psychologist, Dr. Tom Patterson, indicate that the appellant was not employable in 1984. R. at 137-38 (Dr. Patterson’s letters), 227-30 (award of disability benefits from Social Security Administration (SSA)), 234 (VA hospital summary). On February 20, 1985, the Board remanded the appellant’s claim for further development (R. at 236), and on May 10, 1985, the RO continued the denial of service connection for PTSD. R. at 244. However, in a January 22, 1986, memorandum, the Director of VA’s Mental Health and Behavioral Sciences Service opined that the appellant’s conscientious objector beliefs and combatant status had resulted in the development of PTSD. R. at 255. On June 3, 1986, the Board awarded service connection for PTSD. R. at 267. The RO awarded a temporary 100% rating for a period of hospitalization beginning February 28, 1982 (see 38 C.F.R. § 4.29 (1994)) and awarded a noncom-pensable rating effective April 1,1983. R. at 271.

Following a request that the rating be increased, the RO awarded a 10% rating-effective April 1, 1983, a 100% rating under 38 C.F.R. § 4.29 for a period of hospitalization beginning on May 30, 1984, and a 30% rating effective February 1, 1985. R. at 297. On January 28, 1987, a confirmed rating decision denied an increased evaluation for the service-connected PTSD. R. at 342.

A May 1987 VA Social and Industrial Survey report concluded that the appellant was moderately impaired socially and severely impaired industrially. R. at 359. Indeed, the appellant was hospitalized for PTSD treatment from June 10 to July 10, 1987. R. at 362-63, 365, 380. According to a July 1987 statement, the appellant’s treating VA psychologist, Dr. Patterson, indicated that various other physical symptoms were appearing because of the PTSD, including heart palpitations, gastric upsets, headaches, and other “physical kinds of concerns.” R. at 394. He concluded that the appellant’s PTSD was severe, that it prevented him from obtaining or retaining employment, and that the 30% disability rating was inadequate. R. at 395, 410-11.

[151] On July 12, 1987, the appellant was readmitted to a VA hospital because of complaints of anxiety. R. at 380. The August 3, 1987, VA hospital discharge summary indicated diagnoses of PTSD and colon spasms and stated that the appellant was taking medication for the colon spasms and stomach cramps, “which are usually related to stress.” Ibid. On August 12, 1987, the BVA issued a decision increasing the rating to 30% disabling for the period between April 1, 1983, and May 29, 1984, but denying a rating higher than 30% disabling for any other period of time at issue. R. at 376.

In an August 21,1987, occupational assessment report prepared at the request of the appellant’s attorney, an evaluator with the Menninger Foundation Return to Work Center found the appellant to be unemployable. R. at 426.

An RO rating decision from September 3, 1987, again awarded the appellant a temporary 100% rating under 38 C.F.R. § 4.29 for a period of hospitalization effective June 10, 1987.R. at 427, 438. Following the periods of hospitalization, the ratings were again reduced to 30%. Ibid.

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Kirwin v. Brown, 8 Vet. App. 148, 1995 U.S. Vet. App. LEXIS 376, 1995 WL 273561 (Cal. 1995).

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