Masors v. Derwinski

2 Vet. App. 181, 1992 U.S. Vet. App. LEXIS 43, 1992 WL 21827
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 7, 1992
DocketNo. 90-540
StatusPublished
Cited by241 cases

This text of 2 Vet. App. 181 (Masors 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
Masors v. Derwinski, 2 Vet. App. 181, 1992 U.S. Vet. App. LEXIS 43, 1992 WL 21827 (Cal. 1992).

Opinion

STEINBERG, Associate Judge:

The veteran, Bruce N. Masors, appeals an April 3, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying his claims for service connection for his •current psychiatric disorders and for non-service-connected pension. We find that the Veterans’ Administration (now the Department of Veterans Affairs) (VA) breached its statutory duty to assist the veteran because it failed to try to obtain psychiatric examination reports and Social Security records that the record on appeal clearly indicated were pertinent to the veteran’s pension claim. Furthermore, the Board failed to provide an adequate statement of reasons or bases for its implicit rejection of the veteran’s evidence on that claim. Accordingly, we retain jurisdiction and remand the record to the Board with instructions that VA fulfill its duty to assist by obtaining the relevant records on that claim, and that the BVA promptly readjudi-cate the pension, claim and provide an adequate statement of reasons or bases regarding its evaluation of the veteran’s evidence on that claim. We affirm the Board’s denial of the service-connected compensation claim.

I. BACKGROUND

The veteran served on active duty in the U.S. Air Force from February 1972 to July 1974. R. at 1. His service medical records [183]*183indicate that in June and July 1973 he was treated for depression, which was diagnosed as “minor” and “mild”. R. at 19, 20. On his separation examination form, the veteran indicated that he had suffered from “depression or excessive worry” and “nervous trouble”. R. at 26. On the same form, the examining physician stated: “Depression and nervous trouble refer to personal problems, treated in mental health clinic, No Comp., No Seq.” R. at 27, 29.

The first indication in the record of a post-service diagnosis of psychiatric problems is in October 1982, when the veteran requested consultation with a YA psychiatrist for purposes of being referred to vocational counseling. The VA psychologist noted that the veteran had been seeing a therapist regularly since December 1981. Supp.R. at 61. The examination report also indicated that the veteran had trouble keeping jobs and that the longest he had held a job since service was 6 months. Supp.R. at 61. The psychiatrist reported an impression of “marked personality disorder” and recommended admission of the veteran to the YA day treatment clinic (DTC). Supp.R. at 61-62.

The veteran was admitted to the DTC in November 1982. The admission report, dated November 26, 1982, contains a diagnosis of “Histrionic Personality Disorder”, and states that the “highest level of adaptive func[t]ions [in the] past year.... [has been] poor.... [and he is u]nable to maintain employment.” Supp.R. at 65. However, the report also noted that the veteran was “in general pleasant in conversation” and “was oriented X3”. Supp.R. at 65. He was discharged from the program on December 13,1982, for failure to attend. Supp.R. at 68.

In March 1983, the veteran was seen by a VA vocational rehabilitation counselor, who found that “Mr. Masors has had significant vocational maladjustment in his life” and “[h]is noncompliance with recommended treatment and inability to maintain interest in most anything indicates very poor prognosis for vocational changes in the future.” Supp.R. at 73. Upon subsequent testing, the counselor concluded that “[h]e is a bright, intellectually capable individual who for personality reasons is unable to adapt to the vocational sphere. He is not seen as a candidate for further vocational rehabilitation services at this time due to the severity of his psychological problems.” Supp.R. at 74. In 1983 a private psychiatrist at the Long Beach Mental Health Center examined the veteran and concluded that “although patient has aspects of many of the personality disorders, the ones that stand out are: .... antisocial personality disorder.... [and] schizotypical personality disorder”, and that “the probabilities are great that he will continue to have difficulty in maintaining regular employment.” Supp.R. at 92.

In June 1983 the Social Security Administration (SSA) found the veteran to be unemployable by reason of his psychiatric disability and entitled to Social Security disability insurance (SSDI). Supp.R. 95-100. According to the SSA decision, a psychiatrist who had examined the veteran for purposes of Social Security benefits had found him to be “permanently unemployable”. Supp.R. at 94. The SSA administrative law judge (A.L.J.) made specific findings of fact that the veteran could not relate appropriately to others in even minimal contact, was unable to perform any of the jobs he had held in the past, had no skills that were transferable to other work, and could not be expected to make a vocational adjustment to jobs which exist in substantial numbers in the national economy. Supp.R. at 99-100.

The veteran first filed for VA benefits for his psychiatric disorder in November 1982, claiming, among other things, that he was “unable to hold [a] job over [the] long term — lost 13 recently”. R. at 31. The VA Regional Office (RO) apparently denied the claim. The veteran appealed to the BVA, and in a decision dated May 13, 1985, the BVA denied both “service connection for a psychiatric disorder” and “a permanent and total disability rating for pension purposes.” R. at 34.

With regard to service connection, the BVA stated that under VA “regulations a personality disorder, which is in the nature [184]*184of a developmental disorder, is not a disease for compensation purposes.” The Board then found that “the emotional problems experienced by the veteran during service were characteristic of a personality disorder, and it is clear from the post-service medical records that the veteran’s psychiatric disorder is a personality disorder.” R. at 37.

On the pension claim, the Board stated that “in view of the veteran’s relatively young age and college education, we are of the opinion that there are several types of jobs which he is capable of performing and which do not involve prolonged contact with other people.” R. at 38. The Board considered the fact that the SSA had found the veteran totally disabled, but stated that the SSA and the VA “use different criteria in determining disability”.

The veteran sought to reopen his claim in February 1989. He stated that he was submitting new evidence consisting of Social Security records demonstrating that he had been totally and continuously disabled since 1981. However, those documents are not found in the record on appeal. On his VA medical examination form, the veteran indicated that he had “seen [a] psychologist for several years in individual therapy” for “schizophreniform disease”, and gave the psychologist’s name (John Milden) and address. R. at 41.

The veteran was given a VA examination for disability evaluation in June and July 1989. On the psychiatric evaluation, the examiner diagnosed “Dysthymic disorder” and “mixed personality disorder with passive aggressive, antisocial, schizoid and borderline traits.” R. at 47. The examiner concluded that “[t]he veteran continues to suffer from his disorders and appears to be quite disturbed. Nevertheless, he is bright, insightful and has potential”. R. at 47.

In an August 30, 1989 rating decision, the RO denied the veteran’s claims, stating:

Cited VA [examination report] shows the veteran has a dysthmic disorder with mixed personality disorder but does not provide new & material evidence to warrant a change in prior denial of SC for nervous condition.

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Cite This Page — Counsel Stack

Bluebook (online)
2 Vet. App. 181, 1992 U.S. Vet. App. LEXIS 43, 1992 WL 21827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masors-v-derwinski-cavc-1992.