Martin v. Brown

4 Vet. App. 136, 1993 WL 17208
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 26, 1993
DocketNo. 90-1248
StatusPublished
Cited by13 cases

This text of 4 Vet. App. 136 (Martin 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
Martin v. Brown, 4 Vet. App. 136, 1993 WL 17208 (Cal. 1993).

Opinions

STEINBERG, J., filed a concurring opinion.

MANKIN, Associate Judge:

On November 16, 1992, the Court issued an opinion in this case which affirmed in part and remanded in part the October 16, 1990, decision of the Board of Veterans’ [138]*138Appeals (BVA or Board). On November 30, 1992, the Secretary of Veterans Affairs (Secretary) filed a motion for reconsideration of the November 16, 1992, opinion. The Secretary contends that there is no authority for the BVA to assign an evaluation for each of appellant’s non-service-connected disorders because a total disability rating based on individual unemployability must be founded only on service-connected disabilities. The Court grants the Secretary’s motion for reconsideration of the November 16, 1992, opinion in this case, and issues this opinion in its stead.

Appellant, Roy Martin, appeals from an October 16, 1990, BVA decision which denied an increased evaluation for generalized anxiety disorder with depression, currently evaluated as 70% disabling, and denied a total rating based on individual un-employability due to service-connected disabilities. The Court holds that the BVA decision was not clearly erroneous in determining that appellant was not entitled to a rating in excess of 70%. The Court also holds that, as to the claim for individual unemployability, the BVA erred when it failed to fulfill the duty to assist and failed to articulate “reasons or bases,” and thus the Court remands this claim.

Appellant served in the U.S. Army from February 6, 1945, to October 28,1946. On October 29, 1946, appellant was granted service connection for generalized anxiety disorder with depression, rated at 10% disabling. In November 1957, service connection was awarded for thrombophlebitis of the right and left legs, each entitled to a 30% rating. Appellant's combined service-connected disability rating was 60%. Appellant was non-service-connected for fracture of the left clavicle and transurethral resection of the prostate.

On January 15,1987, appellant filed for a total disability rating based on individual unemployability. Appellant, a former State of Alabama veterans service officer, claimed he was forced into early retirement due to his nervous condition. On September 22, 1987, appellant submitted private physician medical statements which indicated diagnoses of adult onset of diabetes, arthritis, diminished vision, leg trauma, and major depression. A January 1988, Veterans’ Administration (now the Department of Veterans Affairs) (VA) Form 21-2545 (Report of Medical Examination for Disability Evaluation) revealed a diagnosis of generalized anxiety disorder with depression, and found appellant’s industrial impairment to be severe, secondary to his emotional and physical handicap, and his social impairment to be slight to moderate.

On March 21, 1988, the VA Regional Office (RO) granted appellant an increased service-connected disability rating of 30% for generalized anxiety disorder with depression, effective from September 22, 1987, the date appellant reopened his claim. This rating increased appellant's combined service-connected disability rating to 70%. A rating as to individual unemployability was deferred pending receipt of VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemploy-ability). Appellant filed this application on April 6, 1988, and claimed that he was forced to retire in December 1987 due to his service-connected disabilities. On April 4, 1988, appellant filed a Notice of Disagreement as to the 30% rating for his neurosis.

A confirmed rating decision issued on April 28, 1988, found that appellant’s service-connected disabilities did not “prevent some form of gainful employment.” On May 18, 1988, appellant filed a Substantive Appeal (Form 1-9). Appellant submitted evidence from the Social Security Administration (SSA) in support of his claim. A February 1988 psychological evaluation revealed that

[claimant’s] depression was not only continuing but was markedly interfering with his intellectual functioning^] ... he had daily crying spells, decreased energy, no interest in any of his former pleasurable activities, suicidal ideation, and feelings of hopelessness and helplessness. Dr. Nolan diagnosed major depression and reported that claimant’s prognosis for improvement is guarded. He stated that claimant’s depression is imposing a significant impairment on his [139]*139intellectual functioning. ... Improvement in his condition is not expected in the near future even with treatment.

Based on this evidence, on June 22, 1988, the SSA administrative law judge awarded entitlement to disability benefits commencing January 1, 1988.

On December 27, 1988, the BVA denied appellant’s claims. The BVA acknowledged the characterization of appellant’s industrial impairment as “severe,” but found the characterization in the nature of a personal opinion, not supported by the entire evidence of record. The Board also concluded that “it [had] not been established that [veteran’s] service-connected disorders prevent his successful participation in a substantially gainful occupation involving minimal physical exertion and social interaction.”

Appellant attempted to reopen his case again and submitted a February 28, 1989, VA consultation report which indicated diagnoses of dysthymic disorder and anxiety, osteoarthritis of both knees, and residual thrombophlebitis of both legs. In March 1989, the veteran was hospitalized for leg pain, and, upon discharge, he was ordered to bed rest. On May 1, 1989, and August 23, 1989, the VARO determined that no change in rating was warranted. Appellant filed a Substantive Appeal (Form 1-9) to the Board on September 8, 1989. On November 17, 1989, the VARO increased appellant’s disability rating for his service-connected nervous condition to 70%, effective from July 1, 1988, thereby increasing his combined disability rating to 90% from July 1, 1988.

On January 1, 1990, appellant filed for increased compensation based on unem-ployability, and asserted entitlement to a 100% schedular disability rating for his nervous condition. On January 22, 1990, the VARO denied appellant’s claims. The Board upheld the VARO decision. Roy Martin, BVA_(Oct. 16,1990). Appellant made a timely appeal to this Court. The Court has jurisdiction pursuant to 38 U.S.C. § 7252 (formerly § 4052).

I. INCREASED EVALUATION FOR GENERALIZED ANXIETY DISORDER WITH DEPRESSION

Appellant contends that the Board was clearly erroneous in not assigning a 100% rating for generalized anxiety disorder with depression, currently assigned a 70% rating. A determination as to the level of a disability is a finding of fact, which the Court reviews on a “clearly erroneous” standard. See 38 U.S.C. § 7261(a)(4) (formerly § 4061); see also Lovelace v. Derwinski, 1 Vet.App. 73, 74 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 52-53 (1990). Under this standard, “if there is a ‘plausible basis’ in the record for the factual determinations of the BVA, even if this Court might not have reached the same factual determinations, [the Court] cannot overturn them.” Gilbert, 1 Vet.App. at 53.

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4 Vet. App. 136, 1993 WL 17208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-brown-cavc-1993.