Lynch v. Gober

11 Vet. App. 22, 1997 U.S. Vet. App. LEXIS 1107, 1997 WL 810888
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 22, 1997
DocketNo. 95-1100
StatusPublished
Cited by14 cases

This text of 11 Vet. App. 22 (Lynch v. Gober) 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
Lynch v. Gober, 11 Vet. App. 22, 1997 U.S. Vet. App. LEXIS 1107, 1997 WL 810888 (Cal. 1997).

Opinion

STEINBERG, Judge:

The appellant, Vietnam veteran Gary F. Lynch, appeals an October 19,1995, Board of Veterans’ Appeals (Board or BVA) decision that a July 14,1983, Department of Veterans Affairs (VA) regional office (RO) decision had not committed clear and unmistakable error (CUE) in denying service connection for post-traumatic stress disorder (PTSD). Record (R.) at 6-7. The appellant filed a brief and a reply brief, and the Secretary filed a brief. Oral argument was held on March 27, 1997, and the parties filed supplemental memoranda in June and August 1997 in response to an April 2, 1997, order of the Court. The appeal was timely filed, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the Board’s decision.

I. Facts

The veteran served on active duty in the U.S. Army from December 5, 1967, to November 28, 1969, with at least one complete tour of duty in Vietnam. R. at 61. His service records do not indicate that he served in combat. Neither his medical examination [24]*24at induction (R. at 32-33) nor his service medical records note any relevant medical conditions (R. at 34-59).

In January 1982, the veteran filed with the VARO at the White River Junction, Vermont, VA Medical and Regional Office Center (VAMROC), an application for VA service-connected disability compensation or non-service-connected pension, claiming frostbite and a kidney ailment. R. at 64. The claims were denied in March 1982. R. at 68. On April 11, 1983, he filed with the same RO a new application for disability compensation, this time claiming a “nervous condition (Vietnam Syndrom[e])”; this application did not refer to any treatment for such a nervous condition or for PTSD. See R. at 71. The claim was apparently prompted by a VA outpatient psychiatric examination on April 6, 1983, conducted in the medical division of the White River Junction VAMROC, during which the veteran was diagnosed as having “post-VN [Vietnam] stress disorder”; however, the RO adjudication division at the White River Junction VAMROC did not obtain the record of that examination until December 1990 (see R. at 175-77), when the record was apparently forwarded to it by the veteran along with other medical records (see R. at 155-73). In an April 1983 letter, the RO informed the veteran of the need to submit “additional evidence to show that ... claimed disabilities have been treated since ... discharge from service”, noting that “[t]he best type of evidence to submit would be statements from doctors who have treated you during this period.” R. at 75. The veteran then submitted private medical records showing treatment for a variety of unrelated conditions. R. at 77-100. A July 1983 RO decision denied the claim, stating: “No further action can be taken unless evidence is submitted to show incurrence in or aggravation by service and present existence”. R. at 103, 105. This RO decision was apparently never appealed, and it thus became final.

In May 1990, the veteran attempted to reopen the disallowance of his PTSD claim. R. at 121. Newly submitted evidence clearly diagnosed PTSD. A November 1989 private psychological evaluation noted that “[s]er-viee-eonnected trauma have left [the veteran] with post-traumatic stress symptoms as well as generalized anxiety” and “these psychiatric difficulties were not evident prior to Vietnam and are a sequelae to his war experiences”; the psychologist diagnosed PTSD. R. at 114-15. In June 1990, the veteran submitted an affidavit describing his wartime experiences. He explained that although he was classified as a mechanic, he served on guard duty, was “frequently” under fire from enemy mortars, bagged bodies, went on patrol, and provided first aid to injured soldiers; he also described the overrunning of Landing Zone Oasis, where he was stationed. R. at 126-27. He stated that he suffered ongoing consequences of those experiences, including nightmares, blackouts, and an inability to maintain a job or trust other people. R. at 128-29. A November 1990 letter from the Department of the Army Joint Services Environmental Support Group provided a history of the veteran’s unit (R. at 145-52) and confirmed that Landing Zone Oasis was “nearly overrun” and that personnel there “manned bunkers, received hostile fire, gave life saving first aid, and then evacuated the wounded” (R. at 142). In December 1990, the RO received the results of the 1983 outpatient examination, and a January 1991 VA psychiatric examination also diagnosed PTSD. R. at 196-200. Ultimately, a March 1991 RO decision granted service connection for PTSD, rated at 50% disabling, with an effective date of May 7,1990 — the date of the application for reopening. R. at 203-05.

The veteran appealed the RO decision as to the effective date; he contended that the effective date should have been based upon the 1983 examination. R. at 210-11. A June 1992 RO decision increased his disability rating to 100%, effective as of May 7, 1990, but denied an effective date earlier than May 1990 because the 1983 RO decision “became final when it was not appealed within one year”. R. at 241-44. In July 1994, the BVA remanded the veteran’s claim in order for the RO to consider in the first instance whether CUE had been committed in the 1983 RO decision. R. at 273. In August 1994, the RO, pursuant to the remand, found no such CUE because in 1983 “the claim was processed in accordance with the procedures in effect at the time based on the factual record [25]*25which was before the decision makers at the time.” R. at 276.

In the October 19,1995, BVA decision here on appeal, the Board concluded as well that there was no CUE in the 1983 RO decision; the Board noted that that decision “was reasonably supported by the evidence on file at that time and prevailing legal authority”. R. at 7. The Board relied upon VA Office of General Counsel Precedential Opinion 12-95 (May 10,1995) [hereinafter G.C. Prec. 12-95] to conclude that the constructive-notice doctrine of Bell v. Derwinski, 2 Vet.App. 611 (1992) (per curiam order), could not be applied prior to the rendering of the decision in Bell; that the law prior to Bell did not include a constructive-notice rule; and that the RO’s failure to consider in July 1983 evidence that was then within VA’s — but not the RO’s — possession could not therefore be CUE. R. at 11-19. The Board thus denied an earlier effective date for service connection for PTSD. R. at 21. A timely appeal to this Court followed.

II. Analysis

The appellant has raised four contentions on appeal: (1) That the constructive-notice doctrine articulated in Bell, supra, should be applied retroactively in this case, in spite of the Court’s conclusion in Damrel v. Brown, 6 Vet.App. 242, 246 (1994), because the constructive-notice doctrine was part of applicable law before Bell; (2) that the BVA, as a matter of equity, had applied a constructive-notice doctrine to grant effective dates prior to the July 1992 decision in Bell,

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Cite This Page — Counsel Stack

Bluebook (online)
11 Vet. App. 22, 1997 U.S. Vet. App. LEXIS 1107, 1997 WL 810888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-gober-cavc-1997.