Mingo v. Derwinski

2 Vet. App. 51, 1992 U.S. Vet. App. LEXIS 4, 1992 WL 579
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 3, 1992
DocketNo. 90-992
StatusPublished
Cited by34 cases

This text of 2 Vet. App. 51 (Mingo 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
Mingo v. Derwinski, 2 Vet. App. 51, 1992 U.S. Vet. App. LEXIS 4, 1992 WL 579 (Cal. 1992).

Opinion

HOLDAWAY, Associate Judge:

Appellant seeks review of an August 2, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) which denied service connection for an acquired psychiatric disorder and denied a total compensation rating based on individual unemployability due to a service-connected disability. We affirm the BVA with regard to the denial of service connection for an acquired psychiatric disorder and remand for readjudi-cation of the individual unemployability issue.

FACTS

Appellant served in the Air Force between March 1979 and September 1984. Her service medical records reflect treatment for headaches in July 1981 and extensive orthomaxillary surgery in January and September 1982. Between December 1982 and January 1983, appellant was seen in a mental health clinic six times. No psychiatric diagnosis was given, although routine psychological testing was done on at least one occasion. In January 1984 she was seen at a different mental health clinic for a security clearance evaluation. The psychologist stated that he “[saw] no mental health disorder.” Appellant’s separation exam did not indicate any psychiatric problems.

In February 1987, appellant filed a claim for benefits with the Veterans’ Administration (now Department of Veterans Affairs) (VA) because of her dental surgery in service, alleging sinusitis, her dental condition, severe headaches, and dizzy spells. A VA medical examination was done in May 1987. The IMPRESSION of the examining doctor was that the “headaches, cause undetermined may relate to sinus disease. There is a possibility that migraine could be entertained.” The VA Regional Office (VARO) apparently granted her a rating for maxillary sinusitis with headaches which she immediately appealed, asking for a higher rating. (Nothing appears in the Record on Appeal (ROA) which gives a specific rating percentage for the initial rating.)

While her appeal to the VARO was pending (October 1988 to January 1989), appellant was referred to the psychology department at a VA Medical Center after her headaches continued despite medical treatment. Dr. Reston, a VA psychologist, reported that the headaches had become the focus of appellant’s life. Psychiatric symptoms, including obsessive behavior, were recorded for the first time. In January 1989, psychological testing was done, resulting in a diagnosis of major depression.

As a result of her appeal for a higher rating for her sinusitis, the VARO granted her a 30% rating for maxillary sinusitis with headaches in January 1989. In February 1989, appellant applied for increased compensation based on individual unem-ployability. She stated:

I am in an unemployable status ... due to the constant severe headaches and the medication to control them and the depression, obsessive compulsive behavior. I am taking antidepressants, antihistamines and several migraine medications that all leave me drowsy. I am not able to function while taking these medications as directed.

In July 1989, the VARO denied service connection for an acquired psychiatric disorder, stating that the mental health treatment in service was “acute and transitory” with “no residuals.” The VARO also determined that appellant’s “currently diagnosed major depression [was] not shown to be due to service, nor was it shown within the presumptive period.” Individual unem-ployability based on service-connected disability was also denied.

[53]*53Appellant filed a Notice of Disagreement on July 19, 1989. She requested an informal hearing in August 1989 in a letter to the RO. Included in this letter was a request for educational benefits. An informal hearing was held in August 1989. The hearing officer affirmed the RO. The BYA, however, remanded the case to the RO with specific instructions that appellant be examined by a panel of three psychiatrists who had not previously examined her and that psychological testing be done. This was accomplished in March 1990. The psychiatric panel’s report confirmed appellant’s previous diagnoses of “Obsessive compulsive personality” and “Dysthymic disorder.” The panel further stated: “We do not feel that the sinusitis and headaches are directly related to [appellant’s] personality type or her dysthymic disorder.”

The Board issued a decision on August 2, 1990, stating:

Clearly, the veteran’s acquired psychiatric disorder, dysthymia, was demonstrated years post service and is unrelated to any in-service incident or to her service-connected sinusitis with headaches.... [T]he veteran’s service-connected maxillary sinusitis with frequent headaches does not present a picture of unemploya-bility. It must be stressed that being unemployed is not synonymous with being unemployable. Further, the veteran has a wide range of employment options. Accordingly, a total rating based on individual unemployability due to a service-connected disability is not warranted.

Sheral A. Mingo, BVA 90-26740 (June 20, 1990). The veteran filed a timely appeal to this Court.

ANALYSIS

I. Entitlement to Service Connection for Acquired Psychiatric Disorder.

The BYA’s finding in this case that “[a]n acquired psychiatric disorder is not shown to have been present in service and was initially demonstrated several years following service separation” is a finding of fact. This Court reviews findings of fact under the “clearly erroneous” standard of review. Gilbert v. Derwinski, 1 Vet.App. 49, 52 (Oct. 12, 1990). “[I]f 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, we cannot overturn them.” Id. In this case, the first notations of a possible psychiatric disorder were not made until 1988 by a VA psychologist, Dr. Reston. A review of Dr. Re-ston’s treatment records shows no diagnosis or contention that appellant’s psychiatric condition is related to the visits to the mental health clinic during service or to anything other than appellant’s condition while he was treating her. Based on the lack of psychiatric diagnosis in the service medical records, the lack of reported connection between her condition in service and her current condition, and the report from the panel of psychiatrists, the BVA finding is certainly plausible. The BVA decision also contains a discussion adequate to comply with the “reasons or bases” requirement of 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)). Accordingly, as to the issue of service connection for acquired psychiatric disorder, the August 2, 1990, BVA decision is AFFIRMED.

II. Entitlement to Compensation Based on Individual Unemployability.

The applicable regulation is 38 C.F.R. § 4.16(b) which states in pertinent part:

It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled....

A “decision of the Board shall include ... a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all issues of fact and law presented on the record.” 38 U.S.C.

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Bluebook (online)
2 Vet. App. 51, 1992 U.S. Vet. App. LEXIS 4, 1992 WL 579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mingo-v-derwinski-cavc-1992.